FEDERALISM  UNMASKED; 

OR  THE  RIGHTS  OF  THE  STATES,  THE  CONGRESS,  THE  EXECUTIVE,  AND 
THE  PEOPLE,  VINDICATED  AGAINST  THE  ENCROACHMENTS  OF  THE 
JUDICIARY,  PROMPTED  BY  THE  MODERN  APOSTATE  DEMOCRACY. 
BEING  A  COMPILATION  FROM  THE  WRITINGS  AND  SPEECHES  OF  THE 
LEADERS  OF  THE  OLD  JEFFERSONIAN  REPUBLICAN  PARTY. 


BY  DANIEL  II,  GOODLOE. 


The  following  are  the  authorities  quoted: 


Page. 

Thomas  Jefferson . 1 

James  Madison  - . 4 

John  Taylor  of  Caroline  5 

Mr.  Jackson  of  Georgia  -  -  7 

Stephens  Thompson  Mason  of  Virginia  -  7 

Mr.  Cocke  of  Tennessee  ...  -  7 

Thomas  T.  Davis  of  Kentucky  -  -  -  7 

William  B.  Giles  of  Virginia  -  -  -  8 

Robert  Williams  of  North  Carolina  -  -  9 

John  Randolph  of  Roanoke  -  -  -  10 

Nathaniel  Macon  of  North  Carolina  -  10,  12 

Joseph  H.  Nicholson  of  Maryland  -  -  10 


Page. 


John  Bacon  of  Massachusetts  -  -  -  11 

John  J.  Crittenden  of  Kentucky  -  -  11 

James  Barbour  of  Virginia  -  -  -  12 

Mahlon  Dickerson  of  New  Jersey  -  -  12 

Richard  M.  Johnson  of  Kentucky  -  -  14 

Andrew  Jackson  of  Tennessee  -  -  -  15 

The  Legislature  of  Georgia  -  -  -  13 

The  Supreme  Court  of  Georgia  -  -  -  12 

The  Legislature  of  Virginia  -  -  -  4 

The  Supreme  Court  of  Virginia  -  -  -  13 

The  Supreme  Court  of  Pennsylvania  -  -  13 


THOMAS  JEFFERSON. 

These  extracts  from  Jefferson’s  writings  can 
be  verified  by  reference  to  the  index  to  his  com¬ 
plete  works,  published  under  the  patronage  of 
Congress.  The  reader  is  referred  to  the  names 
of  the  persons  to  whom  the  letters  are  addressed. 

In  a  letter  to  Mr.  Adams,  dated  September  11, 
1804,  he  says : 

You  seemed  to  think  that  it  devolved  on' the 
judges  to  decide  on  the  validity  of  the  sedition 
law.  But  nothing  in  the  Constitution  has  given 
them  a  right  to  decide  for  the  Executive,  more 
than  the  Executive  to  decide  for  them.  Both 
magistrates  are  equally  independent  in  the  sphere 
of  action  assigned  to  them.  The  judges,  believ¬ 
ing  the  law  constitutional,  had  a  right  to  pass  a 
sewence  of  fine  and  imprisonment;  because  the 
power  was  placed  in  their  hands  by  the  Consti¬ 
tution.  But  the  Executive,  believing  the  law  to 
be  unconstitutional,  were  bound  to  remit  the  exe¬ 
cution  of  it;  because  that  power  had  been  con¬ 
fided  to  them  by  the  Constitution. 

Extract  of  a  letter  to  Judge  Roane,  dated  Poplar 
Forest,  September  6,  1819. 

In  denying  the  right  they  usurp  of  exclusively 
explaining  the  Constitution,  I  go  further  than 
you  do,  if  I  understand  rightly  your  quotation 
from  the  Federalist,  of  an  opinion  that  “  the  Judi¬ 


ciary  is  the  last  resort  in  relation  to  the  other  de¬ 
partments  of  the  Government,  but  not  in  relation 
to  the  rights  of  the  parties  to  the  compact  under 
which  the  Judiciary  is  derived.”  If  this  opinion 
be  sound,  then,  indeed,  is  our  Constitution  a 
complete  felo  de  se.  For,  intending  to  establish 
three  departments,  co-ordinate  and  independent, 
that  they  might  check  and  balance  one  another, 
it  has  given,  according  to  this  opinion,  to  one  of 
them  alone  the  right  to  prescribe  rules  for  the 
government  of  the  others  ;  and  to  that  one,  too, 
which  is  unelected  by  and  independent  of  the 
nation. 

*  *  *  Tim  Constitution,  on  this  hypoth¬ 

esis,  is  a  mere  thing  of  wax,  in  the  hands  of  the 
Judiciary,  which  they  may  twist  and  shape  into 
any  form  they  please.  It  should  be  remembered, 
as  an  axiom  of  eternal  truth  in  politics,  that 
whatever  power  in  any  Government  is  independ¬ 
ent,  is  absolute  also;  in  theory  only  at  first, 
while  the  spirit  of  the  people  is  up,  but  in  prac¬ 
tice  as  fast  as  that  relaxes.  Independence  can  be 
trusted  nowhere  but  with  the  people  in  mass. 
They  are  inherently  independent  of  all  but 
moral  law.  My  construction  of  the  Constitution 
is  very  different  from  that  you  quote.  It  is,  that 
each  department  is  truly  independent  of  the 
others,  and  has  an  equal  right  to  decide  for  it¬ 
self  what  is  the  meaning  of  the  Constitution  in 
the  cases  submitted  to  its  action,  and  especially 


2 


where  it  is  to  act  ultimately  and  without  appeal. 
I  will  explain  myself  by  examples,  which,  having 
occurred  while  I  was  in  office,  are  better  known 
to  me,  and  the  principles  which  governed  them. 
Extract  from  a  letter  to  Mr.  Jarvis ,  dated  Monticello , 
September  28,  1820. 

*  *  *  You  seem,  in  pages  84  and  148,  to 

consider  the  judges  as  the  ultimate  arbiters  of 
all  constitutional  questions — a  very  dangerous 
doctrine  indeed,  and  one  which  would  place  us 
under  the  despotism  of  an  oligarchy.  Our  judges 
are  as  honest  as  other  men,  and  not  more  so. 
They  have,  with  others,  the  same  passions  for 
party,  for  power,  and  the  privilege  of  their  corps. 
Their  maxim  is,  “  lord  judicis  est  ampliare  juris- 
dictionemf  and  their  power  the  more  dangerous 
as  they  are  in  office  for  life,  and  not  responsible, 
as  the  other  functionaries  are,  to  the  elective  con¬ 
trol.  The  Constitution  has  erected  no  such  sin¬ 
gle  tribunal,  knowing  that,  to  whatever  hands 
confided,  with  the  corruptions  of  time  and  party, 
its  members  would  become  despots.  It  has  more 
wisely  ma.de  all  the  departments  co-equal  and 
co-sovereign  within  themselves.  If  the  Legisla¬ 
ture  fails  to  pass  laws  for  a  census,  for  paying 
the  judges  and  other  officers  of  the  Government, 
for  establishing  a  militia,  for  naturalization,  as 
prescribed  by  the  Constitution,  or  if  they  fail  to 
meet  in  Congress,  the  judges  cannot  issue  then 
mandamus  to  them  ;  if  the  President  fails  to  sup¬ 
ply  the  place  of  a  judge,  to  appoint  other  civil  or 
military  officers,  to  issue  requisite  commissions, 
the  judges  cannot  force  him.  They  can  issue 
their  mandamus  or  distringas  to  no  executive  or 
legislative  officer,  to  enforce  the  fulfilment  of 
their  official  duties,  any  more  than  the  President 
or  Legislature  may  issue  orders  to  the  judges  or 
their  officers. 

Extract  from  a  letter  to  Thomas  Ritchie,  dated  Mon¬ 
ticello ,  December  25,  1820. 

*  *  *  The  Judiciary  of  the  United  States 

is  the  subtle  corps  of  sappers  and  miners  con¬ 
stantly  working  under  ground  to  undermine  the 
foundations  of  our  confederated  fabric.  They 
are  construing  our  Constitution  from  a  co-ordina¬ 
tion  of  a  general  and  special  government  to  a 
general  and  supreme  one  alone. 

Extract  from  a  letter  to  Archibald  Thweat,  dated 
Monticello ,  January  19,  1821. 

The  Legislative  and  Executive  branches  may 
sometimes  err,  but  elections  and  dependence  will 
bring  them  to  rights.  The  Judiciary  branch  is 
the  instrument  which,  working  like  gravity, 
without  intermission,  is  to  press  us  at  last  into 
one  consolidated  mass.  Against  this  I  know  no 
one  who  equally  with  Judge  Roane  himself  pos¬ 
sesses  the  power  and  the  courage  to  make  re¬ 
sistance  ;  and  to  him  I  look,  and  have  long  looked, 
as  our  strongest  bulwark.  If  Congress  fails  to 
shield  the  States  from  dangers  so  palpaple  and 
so  imminent,  the  States  must  shield  themselves, 
and  meet  the  invader  foot  to  foot.  This  is  already 
half  done  by  Colonel  Taylor’s  book,  because  a 
conviction  that  we  are  right  accomplishes  half 
the  difficulty  of  correcting  wrong.  This  book  is 
the  most  effectual  retraction  of  our  Government 
to  its  original  principles  which  has  ever  yet 


been  sent  by  Heaven  to  our  aid.  Every  State 
in  the  Union  should  give  a  copy  to  every  member 
they  elect,  as  a  standing  instruction,  and  ours 
should  set  the  example.  Accept,  with  Mrs. 
Thweat,  the  assurance  of  my  affectionate  and 
respectful  attachment. 

Extract  from  a  letter  to  Mr.  C.  Hammond ,  dated 
Monticello ,  August  18,  1821.  • 

It  has  long,  however,  been  my  opinion,  and  I 
have  never  shrunk  from  its  expression,  (although 
I  do  not  choose  to  put  it  into  a  newspaper,  nor, 
like  a  Priam  in  armor,  offer  myself  its  cham¬ 
pion,)  that  the  germ  of  dissolution  of  our  Feder¬ 
al  Government  is  in  the  constitution  of  the  Fed¬ 
eral  Judiciary — an  irresponsible  body,  (for  im¬ 
peachment  is  scarcely  a  scarecrow,)  working 
like  gravity  by  night  and  by  day,  gaining  a  little 
to-day  and  a  little  to-morrow,  and  advancing  its 
noiseless  step,  like  a  thief,  over  the  field  of 
jurisdiction,  until  all  shall  be  usurped  from  the 
States,  and  the  Government  of  all  be  consoli¬ 
dated  into  one.  To  this  I  am  opposed  ;  because, 
when  all  government,  domestic  and  foreign,  in 
little  as  in  great  things,  shall  be  drawn  to  Wash¬ 
ington  as  the  centre  of  all  power,  it  will  render 
powerless  the  checks  provided  of  one  Govern¬ 
ment  on  another,  and  will  become  as  venal  and 
oppressive  as  the  Government  from  which  we 
separated.  It  will  be  as  in  Europe,  where  every 
man  must  be  either  pike  or  gudgeon,  hammer  or 
anvil.  Our  functionaries  and  theirs  are  wares 
from  the  same  workshop,  made  of  the  same  ma¬ 
terials,  and  by  the  same  hand.  If  the  States 
look  with  apathy  on  this  silent  descent  of  their 
Government  into  the  gulf  which  is  to  swallow 
all,  we  have  only  to  weep  over  the  human  char¬ 
acter,  formed  uncontrollable  but  by  a  rod  of 
iron,  and  the  blasphemers  of  man,  as  incapable 
of  self-government,  become  his  true  historians. 

Extract  from  a  letter  to  William  T.  Barry ,  dated 
Monticello ,  July  2,  1822. 

Sir  :  Your  favor  of  the  15th  of  June  is  re¬ 
ceived,  and  I  am  very  thankful  for  the  kindness 
of  its  expressions  respecting  myself.  But  it  as¬ 
cribes  to  me  merits  which  I  do  not  claim.  I  was 
only  of  a  band  devoted  to  the  cause  of  Independ¬ 
ence,  all  of  whom  exerted  equally  their  best  en¬ 
deavors  for  its  success,  and  have  a  common  right 
to  the  merits  of  its  acquisition.  So,  also,  is  the 
civil  revolution  of  1801.  Very  many  and  very 
meritorious  were  the  worthy  patriots  who  assist¬ 
ed  in  bringing  back  our  Government  to  its  Re¬ 
publican  tack.  To  preserve  it  in  that,  will  re¬ 
quire  unremitting  vigilance.  Whether  the  sur¬ 
render  of  our  opponents ,  their  reception  into  our 
camp ,  their  assumption  of  our  name ,  and  apparent 
accession  to  our  objects ,  may  strengthen  or  weaken 
the  genuine  principles  of  Republicanism ,  may  be  a 
good  or  an  evil ,  is  yet  to  be  seen.  I  consider  the 
party  division  of  Whig  and  Tory  the  most  whole¬ 
some  which  can  exist  in  any  Government,  and 
well  worthy  of  being  nourished,  to  keep  out 
those  of  a  more  dangerous  character.  We  al¬ 
ready  see  the  power,  installed  for  life,  responsi¬ 
ble  to  no  authority,  (for  impeachment  is  not  even 
a  scarecrow,)  advancing  with  a  noiseless  and 
steady  pace  to  the  great  object  of  consolidation. 


3 


The  foundations  are  already  deeply  laid,  by  their 
decisions,  for  the  annihilation  of  constitutional 
State  rights,  and  the  removal  of  every  check, 
every  counterpoise,  to  the  engulphing  power  of 
which  themselves  are  to  make  a  sovereign  part 
If  ever  this  vast  country  is  brought  under  a  sin¬ 
gle  Government,  it  will  be  one  of  the  most  ex¬ 
tensive  corruption,  indifferent  and  incapable  of 
a  wholesome  care  over  so  wide  a  spread  of  sur¬ 
face.  This  will  not  be  borne,  and  you  will  have 
to  choose  between  reformation  and  revolution. 
If  I  know  the  spirit  of  this  country,  the  one  or 
the  other  is  inevitable.  Before  the  canker  is  be¬ 
come  inveterate,  before  its  venom  has  reached 
so  much  of  the  body  politic  as  to  get  beyond  con¬ 
trol,  remedy  should  be  applied.  Let  the  future 
appointments  of  judges  be  for  four  or  six  years, 
and  renewable  by  the  President  and  Senate. 
This  will  bring  their  conduct,  at  regular  periods, 
under  revision  and  probation,  and  may  keep 
them  in  equipoise  between  the  general  and  spe¬ 
cial  Governments.  We  have  erred  in  this  point, 
by  copying  England,  where  certainly  it  is  a  good 
thing  to  have  the  judges  independent  of  the 
King.  But  we  have  omitted  to  copy  their  cau¬ 
tion,  also,  which  makes  a  judge  removable  on 
the  address  of  both  legislative  houses.  That 
there  should  be  public  functionaries  independ¬ 
ent  of  the  nation,  whatever  may  be  their  demerit, 
is  a  solecism,  in  a  Republic,  of  the  first  order  of 
absurdity  and  inconsistency. 

Extract  from  a  letter  to  Judge  Johnson ,  dated  Mon- 
ticello ,  March  4,  1823. 

I  cannot  lay  down  my  pen  without  recurring 
to  one  of  the  subjects  of  my  former  letter,  for,  in 
truth,  there  is  no  danger  I  apprehend  so  much 
as  the  consolidation  of  our  Government  by  the 
noiseless,  and  therefore  unalarming,  instrument¬ 
ality  of  the  Supreme  Court.  This  is  the  form 
in  which  Federalism  now  arrays  itself;  and  con¬ 
solidation  is  the  present  principle  of  distinction 
between  Republicans  and  pseudo-Republicans, 
but  real  Federalists.  I  must  comfort  myself  with 
the  hope  that  the  judges  will  see  the  importance 
and  the  duty  of  giving  their  country  the  only 
evidence  they  can  give  of  fidelity  to  its  Constitu¬ 
tion,  and  integrity  in  the  administration  of  its 
laws  ;  that  is  to  say,  by  every  one’s  giving  his 
opinion  seriatim  and  publicly  on  the  cases  he  de¬ 
cides.  Let  him  prove  by  bis  reasoning  that  he 
has  read  the  papers  ;  that  he  has  considered  the 
case  ;  that,  in  the  application  of  the  law  to  it,  he 
uses  his  own  judgment  independently,  and  un¬ 
biassed  by  party  views  and  personal  favor  or 
disfavor.  Throw  himself  in  every  case  on  God 
and  his  country  ;  both  will  excuse  him  for  error, 
and  value  him  for  his  honesty.  The  very  idea 
of  cooking  up  opinions  in  conclave,  begets  sus¬ 
picions  that  something  passes  which  fears  the 
public  ear  ;  and  this,  spreading,  by  degrees  must 
produce  at  some  time  abridgment  of  tenure,  fa- 
cilitv  of  removal,  or  some  other  modification 
which  may  promise  a  remedy.  For,  in  truth, 
there  is  at  this  time  more  hostility  to  the  Feder¬ 
al  Judiciary  than  to  any  other  organ  of  the  Gov¬ 
ernment. 

I  should  greatly  prefer,  as  you  do,  four  judges 
to  any  greater  number.  Great  lawyers  are  not 


over-abundant,  and  the  multiplication  of  judges 
only  enable  the  weak  to  out- vote  the  wise  ;  and 
three  concurrent  opinions,  out  of  four,  gives  a 
strong  presumption  of  right. 

Extract  from  a  letter  to  Judge  Johnson ,  dated  Mon - 
ticello,  June  12,  1823. 

The  practice  of  Judge  Marshall,  of  travelling 
out  of  his  case  to  prescribe  what  the  law  would, 
be  in  a  moot  case  not  before  the  court,  is  very 
irregular  and  very  censurable.  I  recollect  an¬ 
other  instance,  and  the  more  particularly,  perhaps, 
because  it  in  some  measure  bore  on  myself. 
Among  the  midnight  appointments  of  Mr.  Adams 
■vfl^re  commissions  to  some  Federal  justices  of  the 
peace  for  Alexandria.  These  were  signed  and 
sealed  by  him,  but  not  delivered.  I  found  them 
on  the  table  of  the  Department  of  State,  on  my 
entrance  into  office,  and  I  forbade  their  delivery. 
Marbury,  named  in  one  of  them,  applied  to  the 
Supreme  Court  for  a  mandamus  to  the  Secretary 
of  State,  (Mr.  Madison,)  to  deliver  the  commission 
intended  for  him.  The  court  determined  at  once, 
that  being  an  original  process,  they  had  no  cog¬ 
nizance  of  it ;  and,  therefore,  the  question  before 
them  was  ended.  But  the  Chief  Justice  went  on 
to  lay  down  what  the  law  would  be,  had  they 
jurisdiction  of  the  case,  to  wit:  that  they  should 
command  the  delivery.  The  object  was  clearly  to 
instruct  any  other  court,  having  the  jurisdiction, 
what  they  should  do,  if  Marbury  should  apply  to 
them.  Besides  the  impropriety  of  this  gratuitous 
interference,  could  anything  exceed  the  perver¬ 
sion  of  law  ?  For  if  there  is  any  principle  of  law 
never  yet  contradicted,  it  is.  that  delivery  is  one 
of  the  essentials  to  the  validity  of  a  deed.  Al¬ 
though  signed  and  sealed,  yet  as  long  as  it  re¬ 
mained  in  the  hands  of  the  party  himself,  it  is  in 
fieri  only — it  is  not  a  deed,  and  can  be  made  so 
only  by  its  delivery.  In  the  hands  of  a  third  per¬ 
son,  it  may  be  made  an  escrow.  But  whatever  is 
in  the  Executive  offices  is  certainly  deemed  to  be  in 
the  hands  of  the  President;  and  in  this  case  was 
actually  in  my  hands,  because,  when  I  counter¬ 
manded  them,  there  was  as  yet  no  Secretary  of 
State.  Yet  this  case  of  Marbury  and  Madison  is 
continually  cited  by  bench  and  bar,  as  if  it  were 
settled  law,  without  any  animadversion  on  its 
being  merely  an  obiter  dissertation  of  the  Chief 
Justice.  *  *  * 

But  the  Chief  Justice  says,  “there  must  be  an 
ultimate  arbiter  somewhere.”  True,  there  must ; 
but  does  that  prove  it  is  either  party?  The  ulti¬ 
mate  arbiter  is  the  people  of  the  Union,  assem¬ 
bled  by  their  deputies  in  Convention,  at  the  call 
of  Congress,  or  of  two-thirds  of  the  Stales.  Let 
them  decide  to  which  they  mean  to  give  an  au¬ 
thority  claimed  by  two  of  their  organs.  And  it 
has  been  the  peculiar  wisdom  and  felicity  of  our 
Constitution  to  have  provided  this  peaceable 
appeal,  where  that  of  other  nations  is  at  once  to 
force. 

Extract  from  a  letter  to  Edward  Livingston,  Esq., 
dated  Monticello ,  March  25,  1825. 

I  have  attended  to  so  much  of  your  work  as 
has  been  heretofore  laid  before  the  public,  and 
have  looked  with  some  attention  also  into  what 
you  have  now  sent  me.  It  will  certainly  arrange 
your  name  with  the  sages  of  antiquity.  Time 


4 


and  changes  in  the  condition  and  constitution  of 
society  may  require  occasional  and  corresponding 
modifications.  One  single  object,  if  your  pro¬ 
vision  attains  it,  will  entitle  you  to  the  endless 
gratitude  of  society — that  of  restraining  judges 
from  usurping  legislation.  And  with  no  body 
of  men  is  this  restraint  more  wanting  than  with 
the  judges  of  what  is  commonly  called  our 
General  Government,  but  what  I  call  our  foreign 
department.  They  are  practicing  on  the  Consti¬ 
tution  by  inferences,  analogies,  and  sophisms, 
as  they  would  on  an  ordinary  law.  They  do 
not  seem  aware  that  it  is  not  even  a  Constitution 
formed  by  a  single  authority,  and  subject  to  a 
single  superintendence  and  control,  but  that  it 
is  a  compact  of  many  independent  powers,  every 
single  one  of  which  claims  an  equal  right  to  under¬ 
stand  it  and  to  require  its  observance.  However 
strong  the  cord  of  compact  may  be,  there  is  a 
point  of  tension  at  which  it  will  break.  A  few 
such  doctrinal  decisions  as  barefaced  as  that  of 
the  Cohens,  happening  to  bear  immediately  on 
two  or  three  of  the  large  States,  may  induce 
them  to  join  in  arresting  the  march  of  Govern¬ 
ment,  and  in  arousing  the  co-States  to  pay  some 
attention  to  what  is  passing,  to  bring  back  the 
compact  to  its  original  principles,  or  to  modify 
it  legitimately  by  the  express  consent  of  the 
parties  themselves,  and  not  by  the  usurpation  of 
their  created  agents.  They  imagine  they  can 
lead  us  into  a  consolidated  Government,  while 
their  road  leads  directly  to  its  dissolution.  This 
member  of  the  Government  was  at  first  consid¬ 
ered  as  the  most  harmless  and  helpless  of  all  its 
organs.  But  it  has  proved  that  the  power  of 
declaring  what  the  law  is,  ad  libitum ,  by  sapping 
and  mining,  slily  and  without  alarm,  the  found¬ 
ations  of  the  Constitution,  can  do  what  open 
force  would  not  dare  to  attempt. 

Extract  from  a  letter  to  Mr.  W.  II.  Torrance)  dated 
Monticello ,  June  11,  1815. 

The  second  question,  whether  the  judges  are 
invested  with  exclusive  authority  to  decide  on 
the  constitutionality  of  a  law,  has  been  hereto¬ 
fore  a  subject  of  consideration  with  me  in  the 
exercise  of  official  duties.  Certainly  there  is  not 
a  word  in  the  Constitution  which  has  given  that 
power  to  them  more  than  to  the  Executive  or 
Legislative  branches.  Questions  of  property,  of 
character,  and  of  crime,  being  ascribed  to  the 
judges  through  a  definite  course  of  legal  pro¬ 
ceeding,  laws  involving  such  questions  belong, 
of  course,  to  them  ;  and  as  they  decide  on  them 
ultimately,  and  without  appeal,  they,  of  course, 
decide  for  themselves.  The  constitutional  validity 
of  the  law  or  laws  again  prescribing  executive 
action,  and  to  be  administered  by  that  branch 
ultimately,  and  without  appeal,  the  Executive 
must  decide  for  themselves ,  also,  whether,  under 
the  Constitution,  they  are  valid  or  not.  So  also, 
as  to  laws  governing  the  proceedings  of  the  Leg¬ 
islature,  that  body  must  judge  for  itself  the  con¬ 
stitutionality  of  the  law,  and  equally  without 
appeal  or  control  from  its  co-ordinate  branches. 
And,  in  general,  the  branch  which  is  to  act  ulti¬ 
mately,  and  without  appeal,  on  any  law,  is  the 
rightful  expositor  of  the  validity  of  the  law,  un¬ 
controlled  by  the  opinions  of  the  other  co-ordi¬ 


nate  authorities.  It  may  be  said  that  contra¬ 
dictory  decisions  may  arise  in  such  case,  and 
produce  inconvenience.  This  i3  possible,  and  is 
a  necessary  failing  in  all  human  proceeding, 
yet  the  prudence  of  the  public  functionaries 
and  authority  of  public  opinion  will  generally 
produce  accommodation. 

In  vol.  9,  page  464,  I  find  a  series  of  resolu¬ 
tions,  which  the  editor  thinks  were  the  original 
of  the  famous  Kentucky  resolutions  relative  to 
the  alien  and  sedition  laws : 

1.  Resolved ,  That  the  several  States  comprising 
the  United  States  of  America  are  not  united  on 
the  principle  of  unlimited  submission  to  their 
General  Government,  but  that,  by  a  compact 
under  the  style  and  title  of  a  Constitution  for 
the  United  States,  and  of  amendments  thereto, 
they  constituted  a  General  Government  for  spe¬ 
cial  purposes — delegated  to  that  Government 
certain  definite  powers,  reserving,  each  State  to 
itself,  the  residuary  mass  of  right  to  their  own 
self-government ;  and  that  whensoever  the  Gen¬ 
eral  Government  assumes  undelegated  powers, 
its  acts  are  unauthoritative,  void,  and  of  no 
force ;  that  to  this  compact  each  State  acceded 
as  a  State,  and  is  an  integral  party,  its  co-Statea 
forming,  as  to  i  self,  the  other  party ;  that  the 
Government  created  by  this  compact  was  not 
made  the  exclusive  or  final  judge  of  the  extent 
of  the  powers  delegated  to  itself,  since  that  would 
have  made  its  discretion,  and  not  the  Constitu¬ 
tion,  the  measure  of  its  powers  ;  but  that,  as  in 
all  other  cases  of  compact  among  powers  having 
no  common  judge,  each  party  has  an  equal  right 
to  judge  for  itself,  as  well  of  infractions,  as  of 
the  measure  and  mode  ot  redress. 

8.  Resolved ,  *  *  *  That  in  cases  of  an 

abuse  of  the  delegated  powers,  the  members  of 
the  General  Government  being  chosen  by  the 
people,  a  change  by  the  people  would  be  the 
constitutional  remedy  ;  but  where  powers  are  as¬ 
sumed  which  have  not  been  delegated,  a  nullifi¬ 
cation  of  the  act  is  the  rightful  remedy;  that 
every  State  has  a  natural  right,  in  cases  not 
within  the  compact,  ( casus  non  foederis ,)  to  nul¬ 
lify,  of  their  own  authority,  all  assumptions  of 
power  by  others  within  their  limits ;  that  with¬ 
out  this  right  they,  would  be  under  the  domin¬ 
ion,  absolute  and  unlimited,  of  whosoever  might 
exercise  this  right  of  judgment  for  them  ;  that, 
nevertheless,  this  Commonwealth,  from  motives 
of  regard  and  respect  for  its  co-States,  has  wished 
to  communicate  with  them  on  the  subject;  that 
with  them  alone  it  is  proper  to  communicate, 
they  alone  being  parties  to  the  compact,  and 
solely  authorized  to  judge,  in  the  last  resort,  of 
the  powers  exercised  under  it,  Congress  being 
not  a  party,  but  merely  the  creature  of  the  com¬ 
pact,  and  subject,  as  to  its  assumptions  of  power, 
to  the  final  judgment  of  those  by  whom,  and  for 
whose  use,  itself  and  its  powers  were  all  created 
and  modified. — Page  469. 

RESOLUTIONS  OF  1798,  DRAWN  BY  MADI¬ 
SON. 

In  the  Virginia  House  of  Delegates,  Friday, 
December  21st,  1798 : 


5 


Resolution  3.  That  this  Assembly  doth  ex¬ 
plicitly  and  peremptorily  declare,  that  it  views 
the  powers  of  the  Federal  Government,  as  result¬ 
ing  from  the  compact  to  which  the  States  are 
parties,  as  limited  by  the  plain  sense  and  inten¬ 
tion  of  the  instrument  constituting  that  compact, 
as  no  farther  valid  than  they  are  authorized  by 
the  grants  enumerated  in  that  compact;  and  that 
in  case  of  a  deliberate,  palpable,  and  dangerous 
exercise  of  other  powers  not  granted  by  the  said 
compact,  the  States,  who  are  parties  thereto, 
have  the  right,  and  are  in  duty  bound,  to  inter¬ 
pose,  for  arresting  the  progress  of  the  evil,  and 
for  maintaining  within  their  respective  limits  the 
authorities,  rights,  and  liberties,  appertaining  to 
them. 

Resolution  5.  That  the  General  Assembly  doth 
particularly  protest  against  the  palpable  and 
alarming  infractions  of  the  Constitution  in  the 
two  late  cases  of  the  11  alien  and  sedition  acts,” 
passed  at  the  last  session  of  Congress  ;  the  first 
of  which  exercises  a  power  nowhere  delegated 
to  the  Federal  Government,  and  which,  by  uni¬ 
ting  legislative  and  judicial  powers  to  those  of 
executive,  subverts  the  general  principles  of  free 
government,  as  well  as  the  particular  organiza¬ 
tion  and  positive  provisions  of  the  Federal  Con¬ 
stitution  ;  and  the  other  of  which  acts  exercises, 
in  like  manner,  a  power  not  delegated  by  the 
Constitution,  but  on  the  contrary  expressly  and 
positively  forbidden  by  one  of  the  amendments 
thereto — a  power  which,  more  than  any  other, 
ought  to  produce  universal  alarm,  because  it  is 
levelled  against  the  right  of  freely  examining 
public  characters  and  measures,  and  of  free  com¬ 
munication  among  the  people  thereon,  which  has 
ever  been  justly  deemed  the  only  effectual 
guardian  of  every  other  right. 

Resolution  7.  That  the  good  people  of  this 
Commonwealth,  having  ever  felt,  and  continuing 
to  feel,  the  most  sincere  affection  for  their 
brethren  of  the  other  States,  the  truest  anxiety 
for  establishing  and  perpetuating  the  Union  of 
all,  and  the  most  scrupulous  fidelity  to  that 
Constitution  which  is  the  pledge  of  mutual 
friendship  and  the  instrument  of  mutual  happi¬ 
ness,  the  General  Assembly  doth  solemnly  ap¬ 
peal  to  the  like  dispositions  in  the  other  States, 
in  confidence  that  they  will  concur  with  this 
Commonwealth  in  declaring,  as  it  does  hereby 
declare,  that  the  acts  aforesaid  are  unconstitu¬ 
tional  ;  and  that  the  necessary  and  proper 
measures  will  be  tak£n  by  each  for  co-operating 
with  this  State,  in  maintaining,  unimpaired,  the 
authorities,  rights,  and  liberties,  reserved  to  the 
States  respectively,  or  to  the  people. 

1798,  December  24.  Agreed  to  by  the  Senate. 

JOHN  TAYLOR  OF  CAROLINE. 

John  Taylor  of  Caroline,  Va.,  was  the  Cato  of 
the  old  Republican  party,  and  his  writings  pos¬ 
sessed  almost  oracular  authority  among  the  fol¬ 
lowers  of  Jefferson : 

Extracts  from  11  New  Views  of  the  Constitution 
by  John  T aylor  of  Caroline ,  Virginia. 

The  perseverance  of  the  gentlemen  in  favor 
of  a  National  Government  proves  that  the  sub¬ 


ject  was  thoroughly  considered  ;  and  the  solemn 
preference  of  the  federal  form  demonstrates  that 
no  construction  by  which  the  preference  will  be 
frustrated  can  be  just.  Its  basis  was  State  sov¬ 
ereignty,  compatible  with  a  federal  limited  Gov¬ 
ernment,  but  incompatible  with'  a  supreme  Na¬ 
tional  Government.  Hence  State  sovereignty 
was  denied  by  the  gentlemen  who  proposed  a 
National  Government.  This  sovereignty  is  the 
foundation  of  all  the  powers  reserved  to  the 
States.  Unless  they  are  sustained  by  it,  they 
are  baseless.  State  legislative,  executive,  and 
judical  powers,  must  all  or  none  flow  from  this 
source.  All  are  necessary  to  sustain  the  State 
republican  (governments.  Subject  either  to  a 
master,  and  the  others  become  subject  to  the 
same  master.  If  the  State  judicial  power,  as 
flowing  from  State  sovereignty,  is  not  independ¬ 
ent,  State  legislative  and  executive  power  can¬ 
not  be  independent,  because  all  rest  upon  the 
same  foundation ;  and  because,  if  a  supreme 
federal  Judiciary  can  control  State  courts,  it  can 
also  control  State  Legislatures  and  Executives. 
Thus  a  federal  form  of  government  would  be  re¬ 
jected,  though  it  was  established,  and  a  National 
Government  would  be  established,  though  it  was 
rejected.  *  *  * 

The  second  section  of  the  article  we  are  con¬ 
sidering  begins  with  the  following  words  :  u  The 
judicial  power  shall  extend The  word  extend, 
far  from  meaning  supremacy,  implies  the  reverse. 
The  distinction  is  expressed  in  the  first  article. 
The  legislation  of  Congress  is  not  extended  to 
the  ten  miles  square,  but  made  supreme  over 
that  District,  in  order  to  abolish  a  State  concur¬ 
rency  of  power  within  it.  The  powers  of  Con¬ 
gress  are  extended  to  specified  objects  ;  but,  as 
these  extensions  did  not  imply  supremacy,  the 
powers  bestowed  are  concurrent,  except  when 
attended  by  positive  prohibitions  upon  the 
States. — See  page  130. 

No  legislative,  executive,  or  judicial  power,  iff 
given  to  the  States,  for  enabling  them  to  exer¬ 
cise  their  reserved  rights,  because  they  were  de¬ 
rived  from  their  anterior  sovereignty.  From 
this  source,  and  the  special  delegations,  arose 
many  cases  of  a  concurrency  in  State  and  Fed¬ 
eral  legislation,  such  as  that  of  taxation  ;  and 
this  concurrency  would  have  extended  to  all  the 
delegated  powers,  except  for  the  prohibitions  of 
the  tenth  section  of  the  first  article.  Those  in 
relation  to  war,  troops,  and  imports  and  exports, 
would  have  been  useless,  except  that  the  States, 
in  virtue  of  their  sovereignty,  would  have  re¬ 
tained  an  absolute  power  as  to  these  objects, 
had  no  such  prohibitions  been  inserted  in  the 
Constitution.  They  might  have  declared  war, 
raised  armies,  and  imposed  duties,  though  Con¬ 
gress  might  have  done  it  also,  upon  the  same 
ground  that  both  the  State  and  Federal  Govern¬ 
ments  may  tax.  Now,  if  an  extension  of  some 
sovereign  powers  of  the  States  to  Congress  did 
not,  without  a  special  prohibition,  take  from  the 
States  their  right  to  exercise  the  same  powers, 
the  Constitution  itself  furnishes  us  with  a  con¬ 
struction  of  the  judicial  article.  As  the  exten¬ 
sion  of  legislative  Federal  power  to  taxation  did 
not  destroy  the  sovereign  power  of  the  States  to 


6 


tax,  nor  invest  Congress  with  a  supreme  power 
to  annul  State  laws  for  that  purpose,  so  the  ex¬ 
tension  of  the  Federal  judicial  power  to  cases  in 
law  and  equity,  arising  under  the  Federal  Con¬ 
stitution  and  laws,  did  not  deprive  the  States 
of  the  inherent /attribute  of  sovereignty  to  dis¬ 
pense  justice  to  their  people  in  these  cases,  nor 
expose  their  decisions  in  cases  of  law  and  equity 
to  be  annulled  by  the  Federal  Judiciary.  A  con¬ 
currency  of  jurisdiction  arose  from  the  extension 
of  judicial  Federal  power,  upon  the  same  princi¬ 
ples  which  produced  a  concurrency  of  legislation 
between  the  Federal  and  State  Governments. 
Original  sovereignties  were  not  in  either  case  sur¬ 
rendered  to  a  delegated  participation.  It  is  owing 
to  a  concurrency  of  jurisdiction  in  the  Federal 
and  State  Governments,  that  the  judges  of  both 
are  required  to  take  an  oath  to  support  the  Con¬ 
stitution;  and  this  concurrency  is  distinctly  ad¬ 
mitted  by  the  Federal  judges  in  revising  State 
judgments,  and  affirming  them,  if  right;  whereas, 
if  the  State  courts  had  no  jurisdiction  in  cases 
of  law  and  equity  arising  under  the  Federal  Con¬ 
stitution  and  laws,  all  their  judgments  would 
have  been  coram  nonfudice,  and  void.  Their  ju¬ 
risdiction  is  thus  admitted,  and  the  only  ques¬ 
tion  is,  whether  Congress  can  empower  the  Fed¬ 
eral  court  to  annul  it. — Pages  131,  132. 

Controversies  may  arise  under  the  Constitu¬ 
tion  between  political  departments,  in  relation 
to  their  powers ;  between  the  legislative  and 
treaty-making  departments  ;  between  the  Senate 
and  the  House  of  Representatives  ;  between  the 
President  and  the  Senate,  or  between  the  State 
and  Federal  departments ;  but  they  would  not 
be  cases  in  law  and  equity,  nor  is  any  power  to 
decide  them  given  to  the  Federal  Judiciary.  One 
species  of  controversy  relates  to  the  form  of 
government;  the  other  flows  from  its  operation. 
The  power  by  which  a  Government  is  formed  or 
altered  is  not  the  power  by  which  the  lawsuits 
of  individuals  are  tried ;  and  therefore  a  power 
to  try  suits  in  law  and  equity  was  never  sup¬ 
posed  to  comprise  the  former  powers. 

Among  the  cases  to  which  the  Federal  juris¬ 
diction  is  extended,  not  one  is  to  be  found  recog¬ 
nising  a  power  to  decide  controversies  between 
any  of  these  political  departments.  It  is  incon¬ 
ceivable  that  a  jurisdiction,  transcending  beyond 
comparison  the  jurisdiction  cautiously  specified, 
should  have  been  tacitly  given  without  any 
specification. — See  pages  134,  135. 

The  third  article  of  the  Constitution  is  both 
organic  and  legal — organic,  in  establishing  a 
Federal  Judiciary  ;  legal,  in  creating  several  new 
individual  legal  rights ;  but  its  legal  character,  to 
be  discerned  in  this  and  other  articles,  is  addressed 
to  all  individuals,  and  of  course  to  all  tribunals. 
The  mechanism  of  a  supreme  and  inferior  courts 
does  no  more  create  a  supreme  national  judicial 
power,  than  the  mechanism  of  Congress  can  create 
a  supreme  national  legislative  power.  None  of 
these  wheels  or  pullies  were  intended  to  de¬ 
stroy  the  State  Governments,  or  their  republi¬ 
can  forms,  or  the  reservation  by  which  only  life 
is  infused  into  those  forms.  Hence  the  mechan¬ 
ism  of  the  Federal  courts  into  supreme  and  in¬ 
ferior  was  only  intended  as  an  auxiliary  towards 


enforcing  the  legal  character  of  the  Constitution, 
and  not  as  an  instrument  for  altering  its  organic 
or  its  contracting  characters.  The  Constitution, 
as  a  law,  would  produce  cases  in  law  and  equity. 
To  such  cases  only,  and  not  to  the  principles  of 
the  compact,  nor  to  the  mechanism  of  our  sys¬ 
tem,  the  judicial  power  of  the  United  States  is 
extended.  The  State  courts  may  also  try  cases 
in  law  and  equity,  but  this  gives  them  no  power 
to  alter  the  mechanism  or  principles  of  Constitu¬ 
tions,  or  to  determine  the  controversies  of  polit¬ 
ical  departments.  Authorities  might  be  cited, 
in  great  numbers,  to  prove  that  such  powers 
have  never  been  considered  as  annexed  to  a 
jurisdiction  in  cases  of  law  and  equity,  but  only 
a  Federal  and  State  construction  is  adduced. 
Congress  have  given  to  the  courts  of  Columbia 
a  power  to  try  all  cases  in  laio  and  equity.  Do 
these  words  convey  a  power  to  regulate  the  po¬ 
litical  departments  or  principles  by  which  the 
District  is  governed?  The  States  gave  to  the 
Federal  courts  the  same  power.  Do  the  same 
words  convey  a  power  to  regulate  the  political 
departments  or  principles  by  which  the  States 
are  governed,  and  not  those  by  which  Columbia 
is  governed?  The  State  of  Ohio  gave  a  juris¬ 
diction  to  one  supreme  court  and  inferior  courts, 
in  cases  of  law  and  equity.  Did  this  create  a 
jurisdiction  able  to  regulate  the  powers  of  polit¬ 
ical  departments  created  by  its  Constitution? — 
Pages  138,  139. 

The  legal  feature  of  the  Constitution,  in  rela¬ 
tion  to  judges,  is  expressed  in  the  sixth  article: 
“The  Constitution  is  the  supreme  law  of  the  land, 
and  the  judges  in  every  State  are  to  be  bound 
thereby.”  Can  the  judgments  of  the  Federal 
court  be  a  supreme  law  over  this  supreme  law  ? 
Is  there  no  difference  between  the  supremacy  of 
a  Federal  court  over  inferior  Federal  courts,  and 
the  supremacy  of  the  Constitution  over  all  courts? 
The  supremacy  of  the  Constitution  is  a  guaranty 
of  the  independent  powers,  within  their  respect¬ 
ive  spheres,  allowed  by  the  Federalist  to  the 
State  and  Federal  Governments.  A  supremacy 
in  the  court  might  abridge  or  alter  these  spheres. 
The  State  judges  are  bound  by  the  Constitution 
and  by  an  oath  to  obey  the  supremacy  of  the 
Constitution,  and  not  even  required  to  obey  the 
supremacy  of  the  Federal  court.  Why  are  all 
the  departments  of  the  State  and  Federal  Gov¬ 
ernments  equally  bound  to  obey  the  supremacy 
of  the  Constitution?  Because  the  State  and 
Federal  Governments  were- considered  as  check¬ 
ing  or  balancing  departments.  Had  either  been 
considered  as  subordinate  to  a  supremacy  in  the 
other,  it  would  have  been  tyrannical  to  require 
it  by  an  oath  to  support  the  supremacy  of  the 
Constitution,  and  also  to  break  that  oath  by 
yielding  to  the  usurped  supremacy  of  the  other. 
The  oath  requires  loyalty  to  State  and  Federal 
powers  ;  judgments  might  require  disloyalty  to 
both.  The  answer  to  this  dilemma  is,  that  as 
the  Federal,  in  its  mechanism,  is  a  perfect  Gov¬ 
ernment,  because  it  somewhat  resembles  the 
British,  the  States  are  bound  to  consider  what¬ 
ever  it  does  as  constitutional ;  and  that  there¬ 
fore  the  oath,  though  taken  in  fact  to  support 
the  Constitution,  virtually  binds  the  swearer  to 


7 


support  both  the  laws  of  the  Federal  Govern¬ 
ment  and  the  judgments  of  its  Supreme  Court. 
But  since  the  State  Governments,  by  their  or¬ 
ganization  and  by  the  guaranty,  are  considered 
as  perfect  Governments  also  in  relation  to  their 
reserved  powers,  I  do  not  see  why  the  Federal 
Government  is  not,  by  the  same  virtual  interpre¬ 
tation  of  the  oath,  bound  to  support  State  laws 
and  judgments,  is  it  not  as  obvious,  by  endow¬ 
ing  the  Federal  Government  or  either  of  its  de¬ 
partments  with  this  virtual  supremacy  over  the 
State  Governments,  deduced,  not  from  the  prin¬ 
ciples  of  the  compact,  but  from  the  form  of  its 
organization,  that  a  consolidated  National  Gov¬ 
ernment  and  a  destruction  of  the  State  Govern¬ 
ments  would  ensue,  as  by  endowing  the  State 
Governments,  upon  the  same  grounds,  with  an 
unexpressed  supremacy  over  the  Federal  Gov¬ 
ernment,  a  dissolution  of  the  Union  would  be 
the  consequence  ?  The  fact  is,  that  both  are 
perfect  Governments,  in  relation  to  their  respect¬ 
ive  powers,  subject  in  one  case  to  three-fourths 
of  the  States,  and  in  the  other  to  the  people  of 
each  State  ;  and  that  neither  this  species  of  per¬ 
fection,  nor  the  mechanism  of  either,  invests  one 
with  any  species  of  supremacy  over  the  other. — 
Seepages  140,  141. 

On  Remodelling  the  Judiciary. 

Near  the  close  of  the  Administration  of  the 
elder  Adams,  viz:  on  the  13th  February,  1801, 
the  judiciary  system  was  remodelled,  by  which  a 
large  number  of  circuit  judgeships  were  created, 
and  the  Supreme  Court  made  simply  a  court  of 
appeal  from  the  inferior  jurisdictions.  But  a 
revolution  had  taken  place  in  the  politics  of  the 
country.  Mr.  Jefferson  had  been  elected  Presi¬ 
dent,  and  his  Republican  friends  had  a  majority 
in  both  branches  of  the  succeeding  Congress. 
Early  in  the  session,  Mr.  Breckinridge,  of~  Ken¬ 
tucky,  introduced  a  resolution  into  the  Senate, 
proposing  the  repeal  of  the  judiciary  act  above 
referred  to,  which,  after  protracted  debate  in  both 
branches  of  Congress,  was  carried. 

MR.  JACKSON,  OF  GEORGIA. 

On  the  12th  January,  Mr.  Jackson,  of  Georgia, 
said : 

We  have  been  asked  if  we  are  afraid  of  having 
an  army  of  judges  ?  For  myself,  I  am  more  afraid 
of  an  army  of  judges,  under  the  patronage  of  the 
President,  than  of  an  army  of  soldiers.  The 
former  can  do  us  more  harm.  They  may  deprive 
us  of  our  liberties,  if  attached  to  the  Executive, 
from  their  decisions ;  and  from  the  tenure  of  office 
contended  for,  we  cannot  remove  them;  while 
the  soldier,  however  he  may  act,  is  enlisted,  or  if 
not  enlisted,  only  subsisted  for  two  years  ;  whilst 
the  judge  is  enlisted  for  life,  for  his  salary  can¬ 
not  be  taken  from  him. — See  12 th  division ,  8 Ih  sec ., 
ls£  art.,  Constitution. 

Sir,  it  is  said  these  evils  will  not  happen. 
But  what  security  have  we  for  the  truth  of  the 
declaration  ?  Have  we  not  seen  sedition  laws  ? 


Have  we  not  heard  judges  crying  out,  through 
the  land,  sedition  1  and  asking  those  whose  duty 
it  was  to  inquire,  is  there  no  sedition  here  ?  It 
is  true,  the  sedition  law  had  expired  with  the 
last  Administration,  and  he  trusted  it  would  not 
exist,  or  at  least  be  acted  on,  under  the  virtuous 
Jefferson.  But  hereafter,  if  it  should  exist,  your 
judges,  under  the  cry  of  sedition  and  political 
heresy,  may  place  half  your  citizens  in  irons. — 
See  Annals  of  Congress ,  1801— ’2,  page  47. 

STEVENS  THOMPSON  MASON,  OF  VIRGINIA. 

During  the  same  discussion,  Mr.  Mason,  of  Vir¬ 
ginia,  said  : 

The  objects  of  courts  of  law,  as  I  understand 
them,  are  to  settle  questions  of  right  between 
suitors,  to  enforce  obedience  to  the  Jaws,  and 
to  protect  the  citizens  against  the  oppressive  use 
of  power  in  the  Executive  offices.  Not  to  pro¬ 
tect  them  against  the  Legislature,  for  that  I  think 
I  have  shown  to  be  impossible,  with  the  powers 
which  the  Legislature  may  safely  use  and  exer¬ 
cise,  and  because  the  people  have  retained  in 
their  own  hands  the  power  of  controlling  and 
directing  the  Legislature,  by  their  immediate 
and  mediate  elections  of  President,  Senate,  and 
House  of  Representatives. — See  ib.,page  73. 


MR.  COCKE,  OF  TENNESSEE. 

Mr.  Cocke,  of  Tennessee,  on  the  same  subject, 
said  : 

We  have  been  told  that  the  nation  is  to  look 
up  to  these  immaculate  judges  to  protect  their 
liberties ;  to  protect  the  people  against  them¬ 
selves.  This  was  novel,  and  what  result  did  it 
lead  to  ?  He  shuddered  to  think  of  it.  Were 
there  none  of  these  judges  ready  to  plunge  their 
swords  in  the  American  heart?  He  did  not 
think  it  proper  to  be  alarmed  by  the  terrors  held 
out. — Ib.,page  75. 

THOMAS  T.  DAVIS,  OF  KENTUCKY. 

In  the  House  of  Representatives,  Mr.  Davis,  of 
Kentucky,  said  : 

I  found  my  opinion  of  the  expediency  of  re¬ 
pealing  the  judiciary  law  on  another  reason  in 
addition  to  that  of  the  courts  being  unnecessary ; 
I  mean  the  power  they  declare  they  have,  in  the 
language  of  Judge  Patterson,  to  “  declare  a  law 
null  and  void.”  Never  can  I  subscribe  to  that 
opinion.  Never  can  I  believe  the  Judiciary  para¬ 
mount  to  both  branches  of  the  Legislature  ;  if  it 
is,  I  have  yet  to  learn  it ;  there  is  an  end  to  leg¬ 
islation  :  a  knave  or  a  fool  can  make  void  your 
best  and  most  wholesome  laws.  *  *  *  I 

am  willing  to  admit  the  Judiciary  to  be  co¬ 
ordinate  with  the  Legislature  in  this  respect,  to 
wit :  that  judges,  thinking  a  law  unconstitution¬ 
al,  are  not  bound  to  execute  it ;  but  not  to  de¬ 
clare  it  null  and  void.  That  power  rests  alone 
with  the  Legislature.  But  we  are  told  this  Ju¬ 
diciary  is  necessary  to  check  this  House  and  the 
Senate,  and  to  protect  the  people  against  their 
worst  enemies.  This  is  saying  to  the  people, 
you  are  incapable  of  governing  yourselves  ;  your 
representatives  are  incapable  of  doing  it ;  in  the 


8 


Judiciary  alone  you  find  a  safe  deposit  for  your 
liberties  ;  and  saying,  also,  that  the  Judiciary  is 
the  vitals  of  the  nation,  wherein  all  power,  all 
safety  dwells  ;  that  the  Legislature  is  subordi¬ 
nate  thereto,  and  a  mere  nominal  thing,  a 
shadow  without  substance,  its  acts  perfectly 
within  the  control  of  the  Judiciary.  I  tremble 
at  such  ideas.  The  sooner  we  put  men  out  of 
power,  who  we  find  determined  to  act  in  this 
manner,  the  better  ;  by  doing  so,  we  preserve  the 
power  of  the  Legislature,  and  save  our  nation 
from  the  ravages  of  an  uncontrolled  Judiciary. — 
Ib.,page  558. 

WILLIAM  B.  GILES,  OF  VIRGINIA. 

On  the  same  subject,  in  the  House  of  Repre¬ 
sentatives,  Mr.  Giles,  of  Virginia,  said  : 

The  general  disquietude  which  manifested 
itself  in  consequence  of  these  enterprising  meas¬ 
ures,  in  the  year  1800,  induced  the  Federal  par¬ 
ty  to  apprehend  that  they  had  pushed  their  prin¬ 
ciples  too  far,  and  they  began  to  entertain  doubts 
of  the  result  of  the  Presidential  election,  which 
was  approaching.  In  this  state  of  things,  it  was 
natural  for  them  to  look  out  for  some  depart¬ 
ment  of  the  Government  in  which  they  could  en¬ 
trench  themselves  in  the  event  of  an  unsuccess¬ 
ful  issue  in  the  election,  and  continue  to  support 
those  favorite  principles  of  irresponsibility  which 
they  could  never  consent  to  abandon. 

The  Judiciary  department,  of  course,  presented 
itself  as  best  fitted  for  their  object,  not  only  be¬ 
cause  it  was  already  filled  with  men  who  had 
manifested  the  most  indecorous  zeal  in  favor  of 
their  principles,  but  because  they  held  their  offi¬ 
ces  by  indefinite  tenures,  and  of  course  were 
further  removed  from  any  responsibility  to  the 
people  than  either  of  the  other  departments.  *  * 

Although  the  gentleman  from  New  York  (Mr. 
T.  Morris)  yesterday  observed  that  the  Presi¬ 
dent  had  commenced  a  system  of  persecution,  so 
ignorant,  he  said,  he  was,  of  the  existence  of  such 
a  system,  that  he  could  not  conceive  to  what  the 
gentleman  alluded.  It  is  some  time,  Mr.  Chair¬ 
man,  since  a  member  of  this  House,  and  sundry 
printers  throughout  the  United  States,  have  been 
amerced  and  imprisoned  to  appease  the  ven¬ 
geance  of  an  unconstitutional  sedition  act,  for 
merely  publishing  their  own  sentiments,  which 
happened  to  be  unpalatable  to  the  then  existing 
Administration  1  It  is  some  time,  sir,  since  we 
have  seen  judges,  who  ought  to  have  been  inde¬ 
pendent,  converted  into  political  partisans,  and, 
like  Executive  missionaries,  pronouncing  politi¬ 
cal  harangues  throughout  the  United  States!  It 
is  some  time,  sir,  since  we  have  seen  the  zealous 
judge  stoop  from  the  bench  to  look  out  for  more 
victims  for  judicial  vengeance  !  It  is  some  time 
since  we  have  seen  the  same  judicial  impetuosity 
drive  from  the  bar  the  most  respectable  counsel, 
who  humanely  proposed  to  interpose  between  a 
friendless  and  unprotected  man  and  the  judicial 
vengeance  to  which  he  was  doomed  !  It  is 
some  time,  sir,  since  we  have  seen  the  same  ju¬ 
dicial  zeal  extending  the  provisions  of  the  sedi¬ 
tion  act,  by  discovering  that  it  had  jurisdiction 
of  the  lex  non  scripta ,  or  common  law.  *  *  * 

The  first  clause  declares  there  shall  be  a  Con¬ 


gress,  to  whom  the  business  of  legislation  is  con¬ 
fided.  This  Congress  is  to  consist  of  a  House  of 
Representatives,  to  be  chosen  by  the  people  im¬ 
mediately,  and  responsible  to  them  at  the  end  of 
every  two  years ;  and  a  Senate  to  be  chosen  by 
the  Legislatures  of  the  different  States,  who  are 
chosen  by  the  people — one-third  of  the  Senators 
to  be  chosen  every  two  years,  and  responsible 
at  the  end  of  every  six  years.  The  Executive 
power  is  vested  in  a  President,  who  is  chosen  by 
electors,  who  are  chosen  for  the  express  purpose 
by  the  people,  and  responsible  at  the  end  of  every 
four  years.  *  *  * 

Thus,  then,  are  formed  two  departments,  their 
powers  specified  and  defined,  the  times  for  ex¬ 
tending  their  powers  fixed,  and,  indeed,  a  com¬ 
plete  organization  for  the  execution  of  their  re¬ 
spective  powers,  without  the  intervention  of  any 
law  for  that  purpose.  A  third  department,  to 
wit :  the  Judiciary  department,  is  still  wanting. 
Is  that  formed  by  the  Constitution  ?  How  is  that 
to  be  formed  ?  It  is  not  formed  by  the  Constitu¬ 
tion.  It  is  only  declared  that  there  shall  be  such 
a  department ;  and  it  is  directed  to  be  formed  by 
the  other  two  departments,  who  owe  a  responsi¬ 
bility  to  the  people.  Here  there  arises  an  im¬ 
portant  difference  of  opinion  between  the  differ¬ 
ent  sides  of  this  House  It  is  contended  on  one 
side  that  the  Judiciary  department  is  formed  by 
the  Constitution  itself.  It  is  contended  on  the 
other  side  that  the  Constitution  does  no  more 
than  to  declare  that  there  shall  be  a  Judiciary 
department,  and  directs  that  it  shall  be  formed 
by  the  other  two  departments,  under  certain 
modifications.  Article  third,  section  first,  of  the 
Constitution,  has  these  words:  “The  judicial 
power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  atid  in  such  inferior  courts  as 
Congress  shall  from  time  to  time  ordain  and  es¬ 
tablish.”  Here,  then,  the  power  to  ordain  and 
establish  inferior  courts  is  given  to  Congress  in 
the  most  unqualified  terms,  and  also  to  ordain 
and  establish  “one  Supreme  Court.”  The  only 
limitation  upon  the  power  of  Congress  in  this 
clause  consists  in  the  number  of  Supreme  Courts 
to  be  established  ;  the  limitation  is  to  the  num¬ 
ber  of  one,  although  that  is  an  affirmative  and 
not  a  negative  expression.  The  number  of  judges, 
the  assignation  of  duties,  the  fixing  compensa¬ 
tions,  the  fixing  of  times  when,  and  places  where, 
the  courts  shall  exercise  their  functions,  &c.,  are 
left  to -the  entire  discretion  of  Congress.  The 
spirit  as  well  as  the  words  of  the  Constitution 
are  completely  satisfied,  provided  one  Supreme 
Court  be  established.  Hence,  when  all  these 
essential  points  in  the  organization  and  formation 
of  courts  is  intrusted  to  the  unlimited  discretion 
of  Congress,  it  cannot  be  said  that  the  courts  are 
formed  by  the  Constitution.  *  *  * 

The  Legislature  has  no  more  control  over  an 
officer  who  holds  an  executive  commission  du¬ 
ring  the  pleasure  of  the  President,  than  over  a 
judicial  officer  holding  his  office  during  good 
behaviour — the  remedy  given  by  the  Constitu¬ 
tion  being  the  same  in  both  cases,  to  wit:  im¬ 
peachment.  Nor  is  there  any  reason  why  the 
office  of  the  one  should  be  less  subject  to  the 
discretion  of  the  Legislature  than  the  office  of 


9 


I 


the  other  ;  and  it  seems  to  be  universally  agreed, 
that  although  the  Legislature  cannot  deprive  an 
Executive  officer  of  his  office  in  any  other  way 
than  by  impeachment,  during  the  continuance  of 
such  office,  yet  the  office  itself  is  always  subject 
to  be  abolished.  The  same  reasoning  will  hold 
with  equal  force  respecting  a  judge  and  a  judicial 
office.  The  reason  why  the  Executive  is  pro¬ 
scribed  from  the  removal  of  a  judge,  is  to  secure 
to  the  judge  a  complete  independence  of  the 
President,  who  is  not  responsible  for  the  discharge 
of  judicial  duties  ;  but  the  removal  is  perfectly 
correct  in  the  case  of  an  Executive  officer,  be¬ 
cause  the  President  is  highly  responsible  for  the 
due  discharge  of  Executive  duties.  The  Legisla¬ 
ture  is  not  responsible  for  either,  and,  of  course, 
stands  in  the  same  constitutional  relation  to 
both.  *  *  * 

And  in  this  part  of  the  sentence,  the  correct 
phraseology  of  the  Constitution  is  worthy  of  ob¬ 
servation.  In  speaking  of  the  Executive  attri¬ 
bute,  to  wit :  the  appointing  and  commissioning 
officers,  the  term  good  behaviour  is  used.  In 
speaking  of  the  legislative  attribute,  to  wit:  the 
creation  of  the  offices,  and  fixing  compensations, 
the  term  during  their  continuance  in  office  is  used. 
The  reason  for  this  variation  of  expression  is 
obvious.  It  was  known  that  the  office  might  be 
discontinued,  and  the  judge  continue  to  behave 
well ;  the  limitation  was  therefore  applied  to  the 
office,  and  not  to  the  good  behaviour,  because  if 
the  office  should  be  discontinued,  which  is  clearly 
implied  in  this  expression,  it  was  not  the  intention 
of  the  Constitution  that  the  compensation  should 
be  received,  no  service  in  that  event  being  to  be 
rendered. 

Can  so  much  inattention  and  folly  be  attrib¬ 
uted  to  the  framers  of  the  Constitution  as  would 
result  from  the  supposition  that  if  it  was  their 
intention  that  a  law  growing  out  of  the  specified 
powers,  in  contradistinction  to  all  others,  should 
be  irrepealable  when  once  passed,  that  so  extra¬ 
ordinary  a  principle  would  be  left  to  mere  impli¬ 
cation  ?  Such  a  supposition  would  be  the  high¬ 
est  injustice  to  the  superior  intelligence  and  pa¬ 
triotism  of  those  gentlemen,  manifested  in  every 
other  part  of  the  instrument.  No,  sir ;  they 
would  have  made  notes  of  admiration ;  they 
would  have  used  every  mark,  adopted  every  cau¬ 
tion,  to  have  arrested  and  fixed  the  attention  of 
the  Legislature  to  so  extraordinary  a  principle. 
They  would  have  said,  Legislators,  be  circum¬ 
spect!  Be  cautious  !  Becalm!  Be  deliberate  ! 
Be  wise !  Be  wise,  not  only  for  the  present,  but 
be  wise  for  posterity !  You  are  now  about  to 
tread  upon  holy  ground.  The  law  you  are  now 
about  to  pass  is  irrepealable!  irrevocable!  We 
are  so  enamored  with  the  salutary  and  practi- 
cal*independence  of  the  English  judiciary  sys¬ 
tem,  that,  in  infusing  its  principle  into  our  Con¬ 
stitution,  we  have  stamped  it  with  the  proverbial 
folly  of  the  Medes  and  Persians  !  If  this  princi¬ 
ple  had  been  introduced  into  the  Constitution  in 
express  words,  it  would  have  formed  an  unfor¬ 
tunate  contrast  to  all  other  parts  of  the  instru¬ 
ment  ;  yet  gentlemen  make  no  difficulty  in  intro¬ 
ducing  that  principle  by  construction,  which 
would  have  appeared  so  stupid  and  absurd  if 


written  in  express  words  in  the  body  of  the  in¬ 
strument.  *  * 

But  the  most  important  consequence  from  this 
doctrine  is,  that  it  erects  the  judges  into  a  body 
politic  and  corporate,  in  perpetual  succession, 
with  censorial  and  controlling  powers  over  the 
other  departments.  And  for  what  purpose? 
The  gentleman  from  North  Carolina  (Mr.  Hen¬ 
derson)  has  informed  us,  “  to  protect  thb  people 
against  their  worst  enemies — themselves  !  ”  This 
is  the  real  exposition  of  the  object,  in  very  few 
but  emphatical  words'.  *  *  * 

Yery  shortly  after  the  establishment  of  courts, 
the  judges  decided  that  they  had  jurisdiction 
over  the  States  in  their  sovereign  capacity.  Did 
this,  in  the  judges,  seem  unambitious?  The 
States  thought  it  did  not.  *  *  * 

The  judges  have  determined  that  they  are 
judges,  in  the  last  resort,  upon  the  constitution¬ 
ality  of  your  laws.  He  proposed  not  to  discuss 
this  question,  because  he  did  not  think  it  perti¬ 
nent  to  the  question  before  us.  He  only  men¬ 
tioned  it  to  show  their  unlimited  claims  to  power. 
The  judges  have  determined  that  their  jurisdic¬ 
tion  extends  to  the  lex  non  scripta ,  or  rather  to 
the  lex  non  descripta ,  or  common  law.  Does  this, 
in  the  judges,  seem  unambitious?  This  law 
pervades  the  whole  municipal  regulations  of  the 
country.  It  is  unlimited  in  its  object,  and  indef¬ 
inite  in  its  character.  Legalize  this  unassuming 
claim  of  jurisdiction  by  the  judges,  and  they 
have  before  them  every  object  of  legislation. 
They  have  sent  a  mandatory  process,  or  process 
leading  to  a  mandamus,  into  the  Executive  Cab¬ 
inet,  to  examine  its  concerns.  Does  this,  in  the 
judges,  seem  unambitious?  Now,  sir,  examine 
and  combine  the  extraordinary  pretensions  to 
power ;  legalize  them,  and  you  have  precisely 
that  body  politic  and  corporate  which  gentlemen 
deem  so  important  in  the  United  States,  “  to 
protect  the  people  from  their  worst  enemies — 
themselves  !  ”  He  should  not  revert  so  frequently 
to  this  expression,  but  that  he  did  consider  it  as 
the  candid  and  correct  exposition  of  the  object 
of  gentlemen  opposed  to  the  repeal.  It  waS  the 
doctrine  of  irresponsibility  against  the  doctrine 
of  responsibility.  The  latter,  he  had  endeavored 
to  show,  characterized  the  Constitution  of  the 
United  States.  It  was  the  doctrine  of  despotism, 
in  opposition  to  the  representative  system.  It 
was  an  express  avowal  that  the  people  were 
incompetent  to  govern  themselves. — fb.}  pages 
581—596. 

ROBERT  WILLIAMS. 

Robert  Williams,  of  North  Carolina,  said  : 

That  there  must  be  some  place  where  the  true 
meaning  of  the  Constitution  must  be  determined, 
all  would  agree.  Where,  then,  is  it?  In  what 
department?  The  people  have  constituted  two 
departments  of  authority  —  the  Executive  and 
Legislative,  emanating  directly  from  the  people — 
and  have  directed  them  to  form  another^  farther 
removed  from  the  people.  Are  we,  then,  to  be 
told  there  is  more  safety  in  confiding  this  im¬ 
portant  power  to  the  last  department,  so  far  re¬ 
moved  from  the  people,  than  in  departments 
flowing  directly  from  the  people,  responsible  to, 


10 


and  returning  at  short  intervals  into,  the  mass 
of  the  people  ?  *  *  * 

If  this  doctrine  is  to  extend  to  the  length  gen¬ 
tlemen  contend,  then  is  the  sovereignty  of  the 
Government  to  be  swallowed  up  in  the  vortex  of 
the  Judiciary.  Whatever  the  other  departments 
of  the  Government  may  do,  they  can  undo.  You 
may  pass  a  law,  but  they  can  annul  it.  Will  not 
the  people  be  astonished  to  hear  that  their  laws 
depend  upon  the  will  of  the  judges,  who  are 
themselves  independent  of  all  law? — lb.,  pages 
531,  532. 

JOHN  RANDOLPH. 

John  Randolph,  of  Roanoke,  said  : 

But,  sir,  if  you  pass  the  law,  the  judges  are  to 
put  their  veto  upon  it  by  declaring  it  unconstitu¬ 
tional.  Here  is  a  new  power,  of  a  dangerous 
and  uncontrollable  nature,  contended  for.  The 
decision  of  a  constitutional  question  must  rest 
somewhere.  Shall  it  be  confided  to  men  imme¬ 
diately  responsible  to  the  people,  or  to  those  who 
are  irresponsible  ?  for  the  responsibility  by  im¬ 
peachment  is  little  less  than  a  name.  From 
whom  is  a  corrupt  decision  most  to  be  feared? 
To  me  it  appears  that  the  power  which  has  the 
right  of  passing,  without  appeal,  on  the  validity 
of  your  laws,  is  your  sovereign.  *  *  *  But, 

sir,  are  we  not  as  deeply  interested  in  the  true 
exposition  of  the  Constitution  as  the  judges  can 
be?  With  all  the  deference  to  their  talents,  is 
not  Congress  as  capaple  of  forming  a  correct 
opinion  as  they  are  ?  Are  not  its  members  act¬ 
ing  under  a  responsibility  to  public  opinion,  which 
can  and  will  check  their  aberrations  from  duty  ? 
Let  a  case,  not  an  imaginary  one,  be  stated :  Con¬ 
gress  violates  the  Constitution  by  fettering  the 
press  ;  the  judicial  corrective  is  applied  to  ;  far 
from  protecting  the  liberty  of  the  citizen,  or  the 
letter  of  the  Constitution,  you  find  them  outdoing 
the  Legislature  in  zeal ;  pressing  the  common  law 
of  England  to  their  service  where  the  sedition 
law  did  not  apply.  Suppose  your  reliance  had 
been  altogether  on  this  broken  staff,  and  not  on 
the  elective  principle  ?  Your  press  might  have 
been  enchained  till  doomsday,  your  citizens  incar¬ 
cerated  for  life,  and  where  is  your  remedy  ?  But 
if  the  construction  of  the  Constitution  is  left  with 
us,  there  are  no  longer  limits  to  our  power  ;  and 
this  would  be  true,  if  an  appeal  did  notlie  through 
the  elections,  from  us  to  the  nation,  to  whom 
alone,  and  not  a  few  privileged  individuals,  it 
belongs  to  decide,  in  the  last  resort,  on  the  Con¬ 
stitution.  Gentlemen  tell  us  that  our  doctrine 
will  carry  the  people  to  the  gallows,  if  they  suffer 
themselves  to  be  misled  into  the  belief  that  the 
judges  are  not  the  expositors  of  the  Constitution. 
Their  practice  has  carried  the  people  to  infamous 
punishment,  to  fine  and  imprisonment ;  and  had 
they  affixed  the  penalty  of  death  to  their  uncon¬ 
stitutional  laws,  judges  would  not  have  been 
wanting  to  conduct  them  to  the  gibbet.  .*  *  * 
No,  sir,  you  may  invade  the  press  ;  the  courts  will 
support  you,  will  outstrip  you  in  zeal  to  further 
this  great  object ;  your  citizens  may  be  imprisoned 
\  and  amerced,  the  courts  will  take  care  to  see  it 
\  executed ;  the  helpless  foreigner  may,  contrary  to 

\  the  express  letter  of  your  Constitution,  be  deprived 

\ 

\  / 


of  compulsory  process  for  obtaining  witnesses 
in  his  defence  ;  the  courts,  in  their  extreme  hu¬ 
mility,  cannot  find  authority  for  granting  it ;  but 
touch  one  cent  of  their  salaries,  abolish  one  sine¬ 
cure  office  which  the  judges  hold,  and  they  are 
immediately  arrayed  against  the  laws,  as  the 
champions  of  the  Constitution.  Lay  your  hands 
on  the  liberties  of  the  people,  they  are  torpid, 
utterly  insensible  ;  but  affect  their  peculiar  inter¬ 
est,  and  they  are  all  nerve.  They  are  said  to  be 
harmless,  unaspiring  men.  Their  humble  pre¬ 
tensions  extend  only  to  a  complete  exemption 
from  legislative  control,  to  the  exercise  of  an  in¬ 
quisitorial  authority  over  the  Cabinet  of  the 
Executive,  and  the  veto  of  the  Roman  Tribunate 
upon  all  your  laws,  together  with  the  establish¬ 
ing  any  body  of  laws  which  they  may  choose  to 
declare  a  part  of  the  Constitution.  *  •  *  *  In 
their  inquisitorial  capacity,  the  Supreme  Court, 
relieved  from  the  tedious  labor  of  investigating 
judicial  points  by  the  law  of  the  last  session,  may 
easily  direct  the  Executive,  by  mandamus,  in  what 
mode  it  is  their  pleasure  that  he  should  execute 
his  functions.  They  will  also  have  more  leisure 
to  attend  to  the  Legislature,  and  forestall,  by  in¬ 
flammatory  pamphlets,  their  decisions  on  all  im¬ 
portant  questions  ;  whilst,  for  the  amusement  of 
the  public,  we  shall  retain  the  right  of  debating, 
but  not  of  voting. — lb.,  pages  661,  662. 

NATHANIEL  MACON. 

Nathaniel  Macon,  of  North  Carolina,  said : 

We  have  heard  much  about  the  judges,  and  the 
necessity  of  their  independence.  I  will  state  one 
fact,  to  show  that  they  have  power  as  well  as 
independence.  Soon  after  the  establishment  of 
the  Federal  courts,  they  issued  a  writ — not  be¬ 
ing  a  professional  man,  I  shall  not  undertake  to 
give  its  name — to  the  Supreme  Court  of  North 
Carolina,  directing  a  case  then  depending  in  the 
State  court  to  be  brought  into  the  Federal  court. 
The  State  judges  refused  to  obey  the  summons, 
and  laid  the  whole  proceedings  before  the  Legis¬ 
lature,  who  approved  their  conduct,  and,  as  well 
as  I  remember,  unanimously ;  and  this  in  that  day 
was  not  called  disorganizing. — Ib.:page  711. 


JOSEPH  H.  NICHOLSON. 

Joseph  H.  Nicholson,  of  Maryland,  said : 

This  Judiciary,  however,  the  gentleman  from 
Delaware  has  said,  in  that  same  spirit  of  Chris- 
tion  meekness  which  appears  to  have  charac¬ 
terized  him  throughout,  he  never  considered  a 
sanctuary,  because  he  knew  that  nothing  was 
sacred  in  the  eyes  of  infidels.  *  *  *  If  the 

entire  rejection  of  the  odious  principle,  that  the 
reins  of  Government  are  to  be  placed  in  the 
hands  of  a  set  of  men  who  are  independent  of 
and  beyond  the  control  of  the  people,  afford  any 
evidence  of  infidelity,  then  do  I  avow  myself  as 
much  an  infidel  as  any  man  living.  *  *  * 

Have  the  people  of  this  country  ever  consented 
to  vest  the  judges  with  this  extensive  discretion¬ 
ary  power?  Have  they  ever  sanctioned  the 
principle  that  the  judges  should  make  law  for 
them  instead  of  their  Representatives  ?  Is  it  not 
legislation,  to  all  intents  and  purposes,  when 


11 


your  judges  are  authorized  to  introduce  at 
pleasure  the  laws  of  a  foreign  country,  to  arm 
themselves,  with  power  ?  The  American  people 
never  dreamed  of  such  a  principle  in  the  Con¬ 
stitution,  and  never  will  submit  to  it.  They 
never  ought  to  submit  to  it.  It  is  giving  to 
the  judges  a  power  infinitely  more  transcend¬ 
ent  than  that  vested  in  any  other  branch  of  the 
Government.  The  Legislature  cannot  recognise 
any  principle  of  the  common  law  having  a 
monarchical  tendency;  yet  this  principle  the 
judges  may  recognise  if  you  leave  it  to  their 
discretion  to  introduce  any  part  of  the  common 
law  which  they  may  think  proper.  *  *  * 

By  what  authority  are  the  judges  to  be  raised 
above  the  law  and  above  the  Constitution? 
Where  is  the  charter  which  places  the  sover¬ 
eignty  of  this  country  in  their  hands?  Give 
them  the  powers  and  the  independence  now 
contended  for,  and  they  will  require  nothing 
more ;  for  your  Government  becomes  a  despot¬ 
ism,  and  they  become  your  rulers.  They  are  to 
decide  upon  the  lives,  the  liberties,  and  the 
property,  of  your  citizens  ;  they  have  an  absolute 
veto  upon  your  laws,  by  declaring  them  null 
and  void  at  pleasure  ;  they  are  to  introduce  at 
will  the  laws  of  a  foreign  country,  differing 
essentially  with  us  upon  the  great  principles  of 
government ;  and,  after  being  clothed  with  this 
arbitrary  power,  they  are  beyond  the  control  of 
the  nation,  as  they  are  not  to  be  affected  by  any 
laws  which  the  people  by  their  representatives 
can  pass.  If  all  this  be  true,  if  this  doctrine  be 
established  in  the  extent  which  is  now  contend¬ 
ed  for,  the .  Constitution  is  not  worth  the  time 
we  are  now  spending  upon  it.  It  is,  as  it  has 
been  called  by  its  enemies,  mere  parchment ;  for 
these  judges,  thus  rendered  omnipotent,  may 
overleap  the  Constitution,  and  trample  on  your 
laws  ;  they  may  laugh  the  Legislature  to  scorn, 
and  set  the  nation  at  defiance. 

To  me,  it  is  a  matter  of  indifference  by  what 
name  you  call  them ;  I  care  not  whether  it  be 
kings  or  judges.  Arm  them  with  power,  and 
the  danger  is  the  same.  For  myself,  I  have  no 
hesitation  in  declaring  that  I  would  rather  be 
subject  to  the  absolute  sway  of  one  tyrant,  than 
to  that  of  thirty ;  as  I  would  prefer  the  mild 
despotism  of  China  to  the  hated  aristocracy  of 
Venice,  where  the  vilest  wretch  was  encouraged 
as  a  secret  informer,  and  the  lion’s  mouth  was 
ever  gaping  for  accusation. — lb.,  pages  805 — 824. 

JOHN  BACON. 

John  Bacon,  of  Massachusetts,  said: 

We  have  heard  much  of  late  about  the  pecu¬ 
liar  and  absolute  independence  of  the  Judiciary. 
Although  thi3  is  a  term  unknown  in  the  Consti¬ 
tution  as  applying  particularly  to  the  Judiciary 
department  of  the  Government,  yet  it  may  and 
ought  to  be  admitted  to  be,  in  a  certain  sense, 
and  in  some  respects,  true.  The  Judiciary  are 
so  far  independent  of  the  Legislative  and  Execu¬ 
tive  departments  of  the  Government,  that  these, 
neither  jointly  or  separately,  have  a  right  to  pre¬ 
scribe,  direct,  or  control,  its  decisions.  It  must 
judge  for  itself ;  otherwise  the  decisions  made 
in  that  department  would  not  be  the  decisions  of 


that,  but  of  some  other  department  or  body  of 
men.  The  Constitution,  and  the  laws  made 
pursuant  thereto,  are  the  only  rule  by  which 
the  Judiciary,  in  their  official  capacity,  are  to 
regulate  tbeir  conduct.  The  same  is  the  case 
with  other  departments.  The  Judiciary  have  no 
more  right  to  prescribe,  direct,  or  control,  the 
acts  of  the  other  departments  of  the  Govern¬ 
ment,  than  the  other  departments  of  the  Gov¬ 
ernment  have  to  prescribe  or  direct  those  of  the 
Judiciary. — lb  ,page  983. 

THE  SEDITION  LAW— MATTHEW  LYON’S 

CASE. 

Matthew  Lyon,  of  the  State  of  Vermont,  was 
convicted  under  the  sedition  act,  in  1798,  sen¬ 
tenced  to  several  months’  imprisonment,  and  the 
payment  of  a  thousand  dollars  fine.  He  subse¬ 
quently  removed  to  Kentucky,  and  petitioned 
Congress  more  than  once  for  indemnity,  on  the 
ground  that  the  law  under  which  he  suffered  was 
unconstitutional,  as  well  as  in  consequence  of 
irregularity  in  the  proceedings  of  the  court 
against  him.  On  Tuesday,  December  8,  1818, 
the  memorial  being  under  consideration  in  the 
United  States  Senate — 

The  Hon.  John  J.  Crittenden,  of  Kentucky, 
said : 

He  considered  the  sedition  act  as  having  been 
unconstitutional,  not  only  from  a  defect  of  power 
in  Congress  to  pass  such  a  law,  but  because  its 
passage  was  expressly  forbidden  by  the  Consti¬ 
tution.  The  sense  of  the  nation  had  unques¬ 
tionably  pronounced  it  unconstitutional;  and 
that  opinion  being  generally  entertained,  it 
ought  to  be  solemnly  pronounced  by  the  Legis¬ 
lature,  that  history  and  the  records  of  the  coun¬ 
try  may  not  hand  it  down  to  posterity  as  a  pre¬ 
cedent  for  acts  of  similar  usurpation.  If  a  re¬ 
vision  of  the  proceedings  in  that  case  was  im¬ 
portant  in  a  public  point  of  view,  it  was  certain¬ 
ly  so  as  it  related  to  the  individuals  who  became 
the  subjects  of  prosecution  under  that  act.  To 
each  of  them,  and  to  every  citizen  of  the  United 
States,  the  Constitution  of  the  United  States 
had  guarantied  certain  rights,  which  had  been 
violated  by  that  law.  This  guaranty  entitled 
them  to  indemnity  in  cases  wherein  those  rights 
were  violated  ;  of  this  indemnity,  the  decision  of 
courts  ought  not  to  deprive  them.  If  they  did, 
he  said,  there  is  no  redeeming  spirit  in  the  Con¬ 
stitution.  Legal  sanctions  cannot  vitiate  consti¬ 
tutional  provisions.  The  Judiciary  is  a  valuable 
part  of  the  Government,  and  ought  to  be  highly 
respected ;  but  is  not  infallible.  The  Constitu¬ 
tion  is  our  guide — our  supreme  law.  Blind 
homage  can  never  be  rendered  by  freemen  to 
any  power.  In  all  cases  of  alleged  violations 
of  the  Constitution,  it  was  for  Congress  to  make 
a  just  discrimination.  In  doubtful  cases,  he 
said,  he  would  not  interfere  ;  but  when  the  Con¬ 
stitution  forbade  a  law,  he  would  not  hesitate 
to  interpose  for  the  relief  of  those  who  suffered 
by  its  inflictions. — Benton's  Abridgment ,  vol.  6, 
page  184. 


12 


Nathaniel  Macon,  of  North  Carolina,  on  the 
same  day,  said: 

According  to  some  gentlemen,  we  were  to  re¬ 
gard  the  Judiciary  more  than  the  law,  and  both 
more  than  the  Constitution.  It  was  a  misfor¬ 
tune  the  judges  were  not  equal  in  infallibility  to 
the  God  who  made  them.  The  truth  was,  if 
the  judge  was  a  party  man  out  of  power,  he 
would  be  a  party  man  in.  The  office  would  not 
change  human  nature.  He  had  no  doubt  that 
the  sedition  law,  and  the  proceedings  under  it, 
had  more  effect  in  revolutionizing  the  Govern¬ 
ment  than  all  its  other  acts.  He  well  remem¬ 
bered  the  language  of  the  times — pay  your  taxes, 
but  don’t  speak  against  Government.  The  gen¬ 
tleman  from  Massachusetts  admits  the  inexpe¬ 
diency  of  the  law,  but  not  its  unconstitutional¬ 
ity.  This  was  of  itself  a  great  concession. 
Would  he,  or  the  gentleman  from  South  Caroli¬ 
na,  put  his  linger  on  the  clause  of  the  Constitu¬ 
tion  which  authorized  that  law?  He  would  not 
impute  evil  motives — he  had  nothing  to  do  with 
them,  but  with  acts.  He  would  have  preferred 
a  silent  vote  ;  but,  being  referred  to  in  the  peti¬ 
tion,  he  could  not  be  silent.  Money  is  paid  back 
daily  from  the  Treasury  to  individuals,  without 
its  being  called  revising  the  decision  of  the 
judges.  He  did  not  agree  with  the  gentleman 
from  Massachusetts  (Mr.  Otis)  about  the  powers 
of  the  Government.  That  gentleman  thought  it 
might  do  any  act  necessary  to  its  preservation. 
He  (Mr.  M.)  believed  it  could  not  go  beyond  the 
Constitution.  We  have  in  the  country  two  Gov¬ 
ernments.  The  Constitution  defines  the  powers 
of  the  General  Government,  and  leaves  the  State 
Governments  untouched.  He  thought  the  posi¬ 
tion  clear,  that  if  there  was  no  constitutional 
power  to  pass  the  law,  the  money  was  taken 
wrongfully,  and  ought  to  be  restored.  Mr.  Ma¬ 
con  was  sorry  the  names  of  judges  had  been  in¬ 
troduced.  We  ought  to  pass  lightly  over  the 
ashes  of  the  dead.  Let  them  sleep  quietly  with 
their  fathers.  He  would  not  disturb  them. — 
Ib.,page  187. 

Extract  from  a  report  made  to  the  United 
States  Senate,  December  5,  1820,  on  the  petition 
of  Matthew  Lyon,  by  the  Hon.  James  Barbour,  of 
Virginia,  in  behalf  of  a  committee  of  that  body 
to  whom  the  petition  was  referred : 

The  claim  of  the  petitioner  to  redress  rests  on 
the  facts,  that  he  was  convicted  under  the  law 
commonly  called  .the  sedition  act,  and  suffered 
in  his  body  a  long  and  loathsome  confinement 
in  jail,  and  in  his  estate,  by  the  payment  of  a 
large  fine.  *  •*  *  A  majority  of  the  com¬ 

mittee,  after  the  severest  investigation,  have  de¬ 
cided  that  the  petitioner  is  entitled  to  relief.  *  * 

The  first  question  that  naturally  presents  itself 
in  the  investigation  is,  was  the  law  constitu¬ 
tional  !  The  committee  have  no  hesitation  in  pro¬ 
nouncing,  in  their  opinions,  it  was  not.  *  *  * 

The  committee  are  aware  that,  in  opposition 
to  this  view  of  the  subject,  the  decision  of  some 
of  the  judges  of  the  Supreme  Court,  sustaining 
the  constitutionality  of  the  law,  has  been  fre¬ 


quently  referred  to,  as  sovereign  and  conclusive 
of  the  question. 

The  committee  entertain  a  high  respect  for  the 
purity  and  intelligence  of  the  Judiciary.  But  it 
is  a  rational  respect,  limited  by  a  knowledge  of 
the  frailty  of  human  nature,  and  the  theory  of 
the  Constitution,  which  declares,  not  only  that 
judges  may  err  in  opinion,  but  also  may  com¬ 
mit  crimes,  and  hence  has  provided  a  tribunal 
for  the  trial  of  offenders. 

In  times  of  violent  party  excitement,  agitating 
the  whole  nation,  to  expect  that  judges  will  be 
entirely  exempt  from  its  influence,  argues  a  pro¬ 
found  ignorance  of  mankind.  Although  clothed 
with  the  ermine,  they  are  still  men,  and  carry 
into  the  judgment  seat  the  passions  and  motives 
common  to  their  kind.  Their  decisions  on  party 
questions  reflect  their  individual  opinions,  which 
frequently  betray  them  unconsciously  into  error. 
To  balance  the  judgment  of  a  whole  people  by 
that  of  two  or  three  men,  no  matter  what  may 
be  their  official  elevation,  is  to  exalt  the  creature 
of  the  Constitution  above  its  creator,  and  to 
assail  the  foundation  of  our  political  frabric  ; 
which  is,  that  the  decision  of  the  people  is  in¬ 
fallible,  from  which  there  is  no  appeal  but  to 
Heaven. — See  Benton's  Abridgment ,  vol.  6,  pages 
660,661. 

Mahlon  Dickerson,  of  New  Jersey,  said  : 

But  I  must  beg  leave  to  differ  from  the  hon¬ 
orable  gentleman  (Mr.  Walker,  of  Georgia)  when 
he  informs  us  that  our  independent  Judiciary  is 
the  bulwark  of  the  liberties  of  the  people.  By 
which  he  must  mean,  defenders  of. the  people 
against  the  oppressions  of  the  Government.  From 
what  I  witnessed  in  the  years  1798,  1799,  and 
1800,  I  never  shall,  I  never  can,  consider  our 
Judiciary  as  the  bulwark  of  the  liberties  of  the 
people.  The  people  must  look  out  for  other  bul¬ 
warks  for  their  liberties.  I  have  the  most  pro¬ 
found  respect  for  the  learning,  talents,  and  in¬ 
tegrity,  of  the  honorable  judges  who  fill  the 
Federal  bench.  But  if  those  who  carried  into 
effect  the  sedition  act  are  to  be  called  the  peo¬ 
ple’s  defenders,  it  must  be  for  nearly  the  same 
reason  that  the  Fates  were  called  Parcce — quia 
non  par ceb ant.  It  would  be  a  subject  of  curious 
investigation,  how  far  the  Judiciary,  from  the 
earliest  times  to  the  present,  have  been  the  de¬ 
fenders  of  the  people’s  liberties  against  the  op¬ 
pressions  of  Government ;  how  much  their  zeal 
has  been  increased  or  diminished  by  the  cer¬ 
tainty  or  uncertainty  in  the  tenure  of  office;  how 
far  by  an  increase  or  diminution  of  salary  ;  how 
much  it  has  been  affected  by  a  fear  of  loss  of 
office  or  salary  on  ,one  side,  or  the  hope  of  fur¬ 
ther  promotion  or  increase  of  salary  on  the  other. 
But  such  speculations  at  present  are  unneces¬ 
sary. — See  ib.,  page  701. 


GEORGIA. 

In  the  case  of  Paddelford,  Fay,  &  Company, 
vs.  the  Mayor  and  Aldermen  of  the  city  of  Sa¬ 
vannah,  Judge  Benning,  in  delivering  the  opin¬ 
ion  of  the  court,  recited  two  or  three  cases  in 
which  the  State  of  Georgia  had  acted  in  disre- 


gard  of  the  decisions  of  the  Supreme  Court  of 
the  United  States.  In  the  case  of  Chisholm,  ex¬ 
ecutor,  against  Georgia,  the  Supreme  Court  of 
the  United  States — 

Ordered ,  that  unless  the  said  State  shall 
either  in  due  form  appear,  or  show  cause  to  the 
contrary,  in  this  court,  by  the  first  day  of  next 
term,  judgment  by  default  shall  be  entered 
against  the  said  State. 

The  reporter  adds,  in  a  note,  that,  “  in  Febru¬ 
ary  term,  1794,  judgment  teas  rendered  for  the 
plaintiff,  and  a  writ  of  inquiry  awarded.  The 
writ,  however,  was  not  sued  out  and  executed  ; 
so  that  this  cause,  and  all  of  the  other  suits 
against  States,  were  swept  at  once  from  the 
records  of  the  court,  by  the  amendment  of  the 
Federal  Constitution.” 

Georgia  treated  the  court  with  contempt  in 
respect  to  this  case.  Her  position  was,  that  the 
court  had  no  jurisdiction  of  her  as  a  party. — 
Georgia  Reports,  vol.  14, page  4*79. 

The  Judge  proceeds  to  say,  that  “  in  this  po¬ 
sition  Georgia  triumphed,”  and  that  the  judg¬ 
ment  against  her  “  fell  dead.” 

The  Judge  next  cites  the  case  of  Worcester  and 
Butler,  who  had  settled  on  the  Cherokee  lands 
in  Georgia,  contrary  to  the  laws  of  the  State, 
and  for  which  offence  they  were  seat  to  the  pen¬ 
itentiary.  On  a  writ  of  error,  the  Supreme  Court 
of  the  United  States  annulled  the  judgment  in 
the  State  court,  and  issued  a  mandate  to  the 
Superior  Court  of  Georgia,  to  carry  its  judgment 
of  reversal  into  execution.  Judge  Benning  pro¬ 
ceeds  : 

Now,  what  did  Georgia  do  on  receipt  of  this 
special  mandate  ?  Through  every  department 
of  her  Government,  she  treated  the  mandate  and 
the  writ  of  error  with  contempt  the  most  pro¬ 
found.  She  did  not  even  protest  against  juris¬ 
diction,  as  she  had  done  in  the  case  of  Chis¬ 
holm’s  executors  ;  but  she  kept  Worcester  and 
Butler  in  the  penitentiary,  and  she  executed,  in 
the  Creek  nation,  the  laws,  for  violating  which 
they  had  been  put  in  the  penitentiary.  *  *  * 

Judge  Benning,  in  delivering  his  opinion,  says, 
further : 

It  was  not  only  in  this  case  that  Georgia  oc¬ 
cupied  thi3  position ;  she  did  it  in  two  other 
cases,  and  those,  cases  of  life  and  death  :  the 
case  of  Tassels,  and  that  of  Graves.  One  of 
these  happened  before  those  of  Worcester  and 
Butler,  namely,  in  1830  ;  the  other  afterwards, 
in  1834.  The  Supreme  Court  had  issued  writs 
of  error  in  each  of  these  cases,  on  the  applica¬ 
tion  of  the  defendants  to  the  State  of  Georgia  ; 
but,  as  the  cases  are  not  reported,  it  is  to  be 
presumed  that  these  writs  never  got  back  to  the 
Supreme  Court;  or  that,  if  they  ever  did,  it  was 
too  late.  It  is  certaiu  that  Georgia  hung  the  ap¬ 
plicants  for  the  writ. 

In  the  Tassels  case,  the  Legislature  passed 
these,  among  other  resolutions  : 


Resolved ,  That  the  State  of  Georgia  will  never 
so  far  compromit  her  sovereignty,  as  an  inde¬ 
pendent  State,  as  to  become  a  party  to  the  case 
sought  to  be  made  before  the  Supreme  Court  of 
the  United  States,  by  the  writ  in  questioh. 

Resolved ,  That  his  Excellency  the  Governor  be, 
and  he  and  every  other  officer  of  this  State  is 
hereby,  requested  and  enjoined  to  disregard  any 
and  every  mandate  and  process  that  has  been 
or  shall  be  served  on  him  or  them,  purporting 
to  proceed  from  the  Chief  Justice  or  any  Asso¬ 
ciate  Justice  of  the  Supreme  Court  of  the  United 
States,  for  the  purpose  of  arresting  the  execution 
of  any  of  the  criminal  law3  of  this  State. 

Similar  resolutions  were  passed,  as  to  the  case 
of  Graves,  by  the  Legislature  of  1834. 

PENNSYLVANIA. 

The  Supreme  Court  of  Pennsylvania,  in  the 
case  of  the  Commonwealth  vs.  Cobbett,  gave  a 
unanimous  opinion  in  1788,  from  which  the  fol¬ 
lowing  is  an  extract : 

If  a  State  should  differ  with  the  United  States 
about  the  construction  of  them,  there  is  no  com¬ 
mon  umpire  but  the  people,  who  should  adjust 
the  affair  by  making  amendments  in  the  consti¬ 
tutional  way,  or  suffer  from  the  defect.  In  such 
a  case,  the  Constitution  of  the  United  States  is 
federal ;  it  is  a  league  or  treaty  made  by  the 
individual  States  as  one  party,  and  all  the  States 
as  another  party.  When  two  nations  differ  about 
the  meaning  of  any  clause,  sentence,  or  word,  in. 
a  treaty,  neither  has  an  exclusive  right  to  decide 
it;  they  endeavor  to  adjust  the  matter  by  nego¬ 
tiation;  but  if  it  cannot  be  thus  accomplished, 
each  has  a  right  to  retain  its  own  interpretation, 
until  a  reference  be  had  to  the  mediation  of  other 
nations,  and  arbitration,  or  the  fate  of  war. 
There  is  no  provision  in  the  Constitution  that 
in  such  a  case  the  judges  of  the  Supreme  Court 
of  the  United  States  shall  control  and  be  conclu¬ 
sive  ;  neither  can  the  Congress  by  a  law  confer 
that  power . — Respublica  vs.  Cobbett ,  3  Dallas's 
Reports ,  page  475. 

VIRGINIA. 

The  Court  of  Appeals  of  Virginia,  in  1814,  in 
the  case  of  Hunter  vs.  Martin,  devisee  of  Fairfax, 
entered  the  following  unanimous  opinion,  after 
full  argument : 

The  court  is  unanimously  of  opinion  that  the 
appellate  power  of  the  Supreme  Court  of  the 
United  States  does  not  extend  to  this  court,  un¬ 
der  a  sound  construction  of  the  Constitution  of 
the  United  States  ;  that  so  much  of  the  twenty- 
fifth  section  of  the  act  of  Congress  to  establish 
the  judicial  courts  of  the  United  States  as  ex¬ 
tends  the  appellate  jurisdiction  of  the  Supreme 
Court  to  this  court  is  not  in  pursuance  of  the 
Constitution  of  the  United  States ;  that  the  writ 
of  error  in  this  case  was  improvidently  allowed 
under  the  authority  of  that  act ;  that  the  pro¬ 
ceedings  thereon  in  the  Supreme  Court  were 
coram  non  judice  in  relation  to  this  court;  and 
that  obedience  to  its  mandate  be  declined  by  this 
court. 


14 


RICHARD  M.  JOHNSON,  OF  KENTUCKY. 

Mr.  Johnson,  who  was  elected  Vice  President 
of  the  United  States  by  the  Democratic  party, 
represented  Kentucky  in  the  United  States  Sen¬ 
ate  in  1822.  I  find  in  Benton’s  Abridgment  of 
the  Debates  of  Congress,  vol.  7,  page  145,  an 
elaborate  speech  of  Mr.  Johnson  upon  a  resolu¬ 
tion  offered  by  him,  proposing  an  amendment  of 
the  Constitution.  His  proposition  was  to  amend 
the  Constitution  by  referring  all  cases  in  which 
a  State  may  be  a  party  to  the  final  adjudication 
of  the  Senate.  In  the  course  of  his  remarks,  he 
says  : 

At  this  time  there  is,  unfortunately,  a  want 
of  confidence  in  the  Federal  Judiciary,  in  cases 
that  involve  political  power ;  and  this  distrust 
may  be  carried  to  other  cases,  such  as  the  law¬ 
yers  call  meum  et  tuum.  It  is  the  opinion  of  many 
eminent  statesmen  that  there  is  a  manifest  dis¬ 
position,  on  the  part  of  the  Federal  Judiciary, 
to  enlarge,  to  the  utmost  stretch  of  constitutional 
construction,  the  powers  of  the  General  Govern¬ 
ment,  at  least  in  that  branch,  and  by  conse¬ 
quence  to  abridge  the  jurisdiction  of  the  State 
tribunals.  I  do  not  assert  this  to  be  the  fact ; 
but,  if  it  is  not,  we  should  adopt  some  method, 
if  practicable,  to  remove  these  ill-founded  sus¬ 
picions.  *  *  * 

Judges,  like  other  men,  have  their  political 
views.  One  may  be  friendly  to  consolidation  ; 
another  may  err  on  the  opposite  extreme  ;  and  a 
third  may  prefer  that  happy  mediocrity,  which 
is  always  safe,  and  generally  salutary.  When 
these  are  associated  upon  the  bench,  and 
each  under  the  influence  of  his  own  partiality, 
there  will  inevitably  be  as  different  conclusions 
among  them,  where  State  sovereignty  is  involved, 
or  the  extent  of  Federal  jurisdiction  is  called 
in  question,  as  if  they  were  members  of  a  legis¬ 
lative  body.  Why,  then,  should  they  be  consid¬ 
ered  any  more  infallible,  or  their  decisions  any 
less  subject  to  investigation  and  reversion  ?  Be¬ 
sides  the  differences  arising  from  political  pre¬ 
possessions,  the  various  structures  of  the  human 
mind  will  produce  a  variety  of  opinion.  One 
may  take  an  expansive  view  of  a  subject,  and 
base  his  decision  upon  truth  and  justice  ;  an¬ 
other  may  be  what  is  sometimes  called  a  techni¬ 
cal  judge;  and,  though  of  equal  integrity,  may 
conceive  it  his  duty  to  stick  to  the  bark  of  the 
case,  and  confine  himself,  in  all  decisions,  to  the 
forms  of  judicial  proceedings.  This  difference 
in  the  organization  of  the  mind  must  necessarily 
result  in  a  difference  of  conclusion.  Courts  also, 
like  cities  and  villages,  or  like  legislative  bodies, 
will  sometimes  have  their  leaders ;  and  it  may 
happen,  that  a  single  individual  will  be  the  prime 
cause  of  a  decision  to  overturn  the  deliberate  act 
of  a  whole  State,  or  of  the  United  States  ;  yet, 
we  are  admonished  to  receive  their  opinions  as 
the  ancients  did  the  responses  of  the  Delphic 
oracle,  or  the  Jews,  with  more  propriety,  the 
communications  from  Heaven,  delivered  by  Urim 
and  Thummim ,  to  the  High  Priest  of  God’s  chosen 
people,  from  the  sanctum  sanctorum.  Other  causes 


of  difference  might  be  multiplied  to  a  tedious  ex¬ 
tent  ;  but  enough  has  been  said  to  show  that 
judges,  who,  like  other  men,  are  subject  to  the 
frailties,  the  passions,  the  partialities,  and  an¬ 
tipathies,  incident  to  human  nature,  should  not 
be  exempted  from  responsibility  on  account  of 
their  superior  integrity,  learning,  and  capacity : 
or  that  their  decisions  should  be  subject  to  re¬ 
vision  by  some  competent  tribunal,  responsible 
to  the  people.  It  is  believed  that  this  is  the  J 
opinion  of  that  great  and  good  man  who  penned 
the  Declaration  of  Independence,  and  who  now 
enjoys,  in  the  shades  of  Monticello,  the  blessings 
of  the  principles  which  it  contains.  *  *  * 

It  was  the  judgment  of  a  court  that  doomed 
the  immortal  Socrates  to  drink  the  hemlock. 

When  the  Roman  tyrant  could  no  longer  use  a 
hired  soldiery  to  immolate  the  victims  of  his 
jealousy,  he  resorted  to  courts  of  law.  When 
Henry  VIII,  of  England,  would  exercise  cruel 
despotism  under  the  forms  of  a  free  Constitution, 
the  army,  the  court,  and  the  Parliament,  were 
the  potent  engines  that  sustained  him.  When 
Mary,  his  daughter,  compelled  the  Protestants  to 
seal  their  testimony  at  the  stake,  the  court  gave 
sanction  to  the  murderous  deeds.  Her  sister  and 
successor,  Elizabeth,  created  the  Court  of  High 
Commission,  and  formally  invested  it  with  in¬ 
quisitorial  power.  She  also  supported  the  arbi¬ 
trary  edicts  of  the  Star  Chamber.  The  Puritans, 
because  obnoxious  to  the  free  exercise  of  the  pre¬ 
rogatives  of  the  Crown,  were  imprisoned  and 
dispersed  by  process  of  law,  and  the  judges  were 
the  supporters  of  her  despotic  power.  When 
she  would  destroy  her  unfortunate  kinswoman, 
the  Queen  of  Scots,  the  judges  were  instructed 
to  condemn  her,  and  by  their  sentence  she  came 
to  the  block.  This  horrid  deed  was  covered  by 
the  cloak  of  judicial  proceedings.  When  Charles 
1  determined  to  change  the  religion  of  Scotland, 
he  made  use  of  the  Court  of  High  Commission  to 
effect  the  object.  By  the  same  judicial  power, 
the  advocates  for  the  doctrines  of  the  Reforma¬ 
tion  have  so  often  been  divested  of  their  re¬ 
ligious  privileges,  and  doomed  to  seal  with 
their  blood  that  religion  which  bore  them  tri¬ 
umphantly  through  the  vale  of  death. 

These  facts  are  not  exhibited  to  derogate  from 
the  character  of  the  Judiciary,  but  to  show  that 
no  truth  is  more  universally  established  in  his¬ 
tory,  that  -no  proposition  can  be  more  plainly 
demonstrated  than  this,  that  judges  may  oppress 
the  people — that  power  cannot  be  safely  con¬ 
fided  anywhere  without  the  guaranty  of  respon¬ 
sibility.  *  *  * 

But  has  this  change  in  the  judicial  term,  from 
tenancy  at  will  to  that  of  life,  essentially  changed 
the  character  of  decisions  in  Great  Britain?  His¬ 
tory  records  the  mournful  fact,  that  since  the 
reign  of  William  and  Mary,  the  courts  of  Great 
Britain  have  invariably  yielded  obedience  to  the 
monarch’s  will,  in  criminal  prosecutions.  The 
banishment  and  death  of  many  of  the  most  dis¬ 
tinguished  of  the  friends  of  liberty  will  confirm  the 
declaration.  The  honored  names  of  Muir,  Ger¬ 
ald,  Margarot,  and  Emmett,  with  many  others 
that  time  cannot  bury  in  oblivion,  must  remain 
the  monument  of  this  independence  of  the  British 


15 


Judiciary,  which  we  are  so  proud  to  imitate.  In 
controversies  betwixt  individuals,  the  effects  of 
the  change  may  have  been  salutary;  but  he  who 
has  depended  upon  the  Judiciary  to  protect  him 
from  royal  malediction,  has  leaned  upon  a  broken 
reed.  *  *  * 

I  know  of  no  clause  in  the  Federal  Constitu¬ 
tion  that  gives  the  power  to  the  Judiciary  of  de¬ 
claring  the  laws  and  Constitution  of  a  State  re¬ 
pugnant  to  the  Constitution  of  the  United  States, 
and  therefore  null  and  void.  No  express  grant 
nor  fair  construction  contains  it;  and  I  presume 
every  gentleman  in  and  out  of  Congress  will 
agree  with  me,  that  the  States  never  designed  so 
to  impair  their  sovereignty  as  to  delegate  this 
power  to  the  Federal  Judiciary.  *  *  * 

The  short  though  splendid  history  of  this  Gov¬ 
ernment  furnishes  nothing  that  can  induce  us  to 
look  with  a  very  favorable  eye  to  the  Federal 
Judiciary  as  a  safe  depository  of  our  liberties. 
When  a  law  was  enacted  in  violation  of  a  vital 
principle  of  the  Constitution,  that  which  was 
designed  to  secure  the  freedom  of  speech  and  of 
the  press,  the  victims  of  its  operation  looked  in 
vain  to  the  judges  to  arrest  the  progress  of 
ursurpation.  If  this  power  could  ever  be  exer¬ 
cised  to  any  good  purpose,  it  would  be,  on  such 
occasions,  to  declare  the  law  unconstitutional 
which  aims  a  deadly  blow  at  the  vital  principles 
of  freedom  ;  but,  so  far  as  the  transactions  of 
that  day  are  detailed  in  our  public  records,  it 
appears  that  the  Judiciary  was  a  willing  instru¬ 
ment  of  Federal  usurpation.  That  law  was 
executed  in  all  the  rigor  of  the  spirit  which 
dictated  it.  The  turbulence  of  faction  found  no 
moderation  there  ;  and  the  people  found  relief 
only  in  their  own  power.  The  exercise  of  their 
elective  franchise  removed  the  evil,  and  this  is 
their  only  safe  dependence. 


GEN.  JACKSON. 

The  following  is  an  extract  from  his  message 
vetoing  the  bill  for  rechartering  the  Bank  of  the 
United  States.  It  may  be  found  on  page  438  of 
the  Senate  Journal  for  the  first  session  of  the 
Twenty-second  Congress,  and  is  in  these  words  : 

If  the  opinion  of  the  Supreme  Court  covered 
the  whole  ground  of  this  act,  it  ought  not  to  con¬ 
trol  the  co-ordinate  authorities  of  this  Govern¬ 
ment.  The  Congress,  the  Executive,  and  the 
Court,  must  each  for  itself  be  guided  by  its  own 
opinion  of  the  Constitution.  Each  public  officer, 
who  takes  an  oath  to  support  the  Constitution, 
swears  that  he  will  support  it  as  he  understands 
it,  and  not  as  it  is  understood  by  others.  It  is 
as  much  the  duty  of  the  House  of  Represent¬ 
atives,  of  the  Senate,  and  of  the  President,  to 
decide  upon  the  constitutionality  of  any  bill  or 
resolution  which  may  be  presented  to  them  for 
passage  or  approval,  as  it  is  of  the  supreme 
judges,  when  it  may  be  brought  before  them  for 
judicial  decision.  The  opinion  of  the  judges  has 
no  more  authority  over  Congress  than  the  opin¬ 
ion  of  Congress  over  the  judges;  and,  on  that 
point,  the  President  is  independent  of  both.  The 
authority  of  the  Supreme  Court  must  not,  there¬ 
fore,  be  permitted  to  control  the  Congress  or  the 
Executive  when  acting  in  their  legislative  capaci¬ 
ties,  but  to  have  only  such  influence  as  the 
force  of  their  reasoning  may  deserve. 

General  Jackson  was  aware  that  he  had  taken 
a  strong  position  in  that  case ;  and  he  closes, 
most  solemnly,  with  an  appeal  to  his  Creator. 
He  sajs  : 

I  have  now  done  my  dufy  to  my  country.  If 
sustained  by  my  fellow-citizens,  I  shall  be  grate¬ 
ful  and  happy  ;  if  not,  I  shall  find,  in  the  motives 
which  impel  me,  ample  grounds  for  contentment 
and  peace. 


WASHINGTON,  D.  C. 

C  H  A 

1860. 


BUELL  &  BLANCHARD,  PRINTERS 


t 


